Following the denial of a variance request in 2003 to use a single-family home as a boardinghouse, Koynok appealed to the trial court who affirmed the decision of the zoning hearing board. In 2005, Koynok again applied to the zoning hearing board, this time for a special exception to use the property as a boardinghouse. The request was denied on the grounds that the zoning ordinance did not allow for boardinghouses in the zoning district. Again Koynok filed an appeal in state court, and again the court upheld the decision of the zoning hearing board. Following a denial by the State Supreme Court of the owner’s request to appeal, Koynok filed an action in federal court alleging a violation of his due process, equal protection and Eighth Amendment rights. Konok alleged that the zoning hearing board “held hearings without proper notice; improperly issued, changed, and/or revoked zoning regulations and property use permits; unfairly cited Koynok with zoning violations; failed to adhere to applicable zoning regulations and Pennsylvania statutes; applied zoning regulations unfairly to Koynok but not other similarly situated individuals; and retaliated against him.”
The District Court, after first staying the matter pending a decision from the state courts on the denial of his special exception request, re-opened the matter (a motion to dismiss) after the state court denied Koynok’s requested relief. The Court then dismissed the case for lack of subject matter jurisdiction, concluding that the federal action was “nothing more than a collateral attack on state court judgments.” In reaching this conclusion, the Court applied the Rooker-Feldman doctrine which applies to claims actually litigated in state court or inextricably intertwined with the state adjudication. The doctrine divests the federal courts of subject matter jurisdiction where the federal action would be equivalent to an appellate review of a state court judgment.
On appeal to the Third Circuit, Koynok argued that his federal claims are not the same as his state court claims. Turning first to the most recent state court action involving the challenge to the denial of the special exception, the Court said that since the state court proceeding was pending at the time, parallel federal action does not invoke the Rooker-Feldman doctrine, but rather preclusion principles. Since neither the parties nor the District Court provided information regarding what the state court decided in Koynok’s first proceeding, the Circuit Court could not properly determined whether the constitutional claims were “actually decided” or “inextricably intertwined” with the state court actions. Since it is possible that Koynok may have a constitutional claim different from the issues reviewed in the state court proceedings, the Circuit Court remanded the matter back to the District Court for further proceedings, expressing no opinion at this stage as to whether the District Court does have subject matter jurisdiction, or whether dismissal for any reason may or may not be warranted.
Koynok v. Lloyd, 2009 WL 1464959 (C.A. 3 (Pa) 5/27/2009).
The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/084302np.pdf
In my District of Colorado lawsuit, 02-cv-1950, I claimed that I had a disagreement with my neighbor, the city council president, over city officials threatening to prosecute me in city court for trimming without a trimming permit, even though they never gave a trimming permit to anyone else and didn’t have a trimming permit form, unless I signed an agreement involving giving up my rights to the street in front of my home. My husband complained to the police that this was extortion but the DA said it was a civil matter. After my neighbors, Kevin and Jane Bennett in Steamboat Springs CO, got the 5,000 square feet from the city for free, they built extra buildings (w heating and plumbing suitable as residences) on it that I claimed violated the zoning and 9 years later still aren’t on the property tax rolls. I claimed that the city council president and his wife induced prosecution of me without criminal information being filed and without a warrant or an arrest because the prosecutor’s spouse was a real estate developer. Charges were dismissed after I refused to plead guilty but the prosecutor gave a public statement that there was probable cause and a victim, i.e. saying I was guilty, but a trial was too expensive. I was charged with telling the wife of the city council president that just because she was married to him didn’t give her a right to break the law. She got a restraining order on me without a statutory basis on the basis that I “molested” her by telling her she didn’t have a right to violate the zoning while I was standing on the road in front of my home and she was 30 feet away with 3 men. At the hearing I was pro se and not offered a chance to get counsel. I only had three days notice. The state judge, James Garrecht, predicted that I would never be able to find a constitutional lawyer willing to sue the city of Steamboat Springs. I was not allowed to introduce the certified city code or to discuss the zoning violations. Then my former neighbor followed me around and called the police whenever she saw me.
I filed suit in state court, pro se. My defense lawyer advised me to switch to federal court because he said I would never get a fair hearing in state court. When I got to state court, the defense claimed Rooker-Feldman but I argued that there were no pending proceedings in state court and no matter of state concern either. When former judge Edward Nottingham dismissed my case he didn’t say why but later he said that he dismissed it because I lost in state court. Under that reasoning you could never have a case for malicious prosecution in federal court. We objected to the magistrate’s report but there wasn’t any acknowledgment of that and there weren’t any motion hearings either.
Most of the defendants hired David Brougham and he claimed “immunity”. He bills had over 20 itemizations about calls with the court regarding pending motions, i.e. confidential information, and the city attorney billed the city for a conference call with the magistrate. The lawyers wouldn’t explain why they were on the phone with judicial personnel discussing pending motions and the court denied my motion for a more clear statement. The bills from Anthony Lettunich were attached to bills from David Brougham as part of the same court filing, document 465, and all three copies, filed in paper Pre-ECF, are missing from the Colorado court house. Brougham was billing both Colorado Intergovernmental Risk sharing Agency and Underwriters at Lloyds London and filed itemized bills in court. Both Lloyds and CIRSA paid for calls with the court regarding pending motions.
The only reference the Colorado Division of Insurance has to Lloyds is
http://www.dora.state.co.us/opr/archive/96insurance.pd
CIRSA doesn’t file the reports on claims handling procedures required by CRS 24-10-115.5 (5) “The commissioner of insurance, or any person authorized by him, shall conduct an insurance examination at least once a year to determine that proper underwriting techniques and sound funding, loss reserves, and claims procedures are being followed.” Cirsa employee (Mike Wagoner) told me that he found my claim on their computer and that he was told to hang up if I called. (See 10th Cir opening brief 06-1038) CIRSA isn’t listed on the Secretary of State database as a business and it is not listed as a government agency. The Co AG filed in a case I was involved with that CIRSA is not a state agency. http://www.cirsa.org/
My judge Edward Nottingham later resigned after public disclosure that during my whole time before him he was paying prostitutes at least once a week. I found his financial statements on line and I don’t see how he could afford prostitutes.
I filed a motion for injunctive relief and to have an evidentiary hearing about the restraining order but Lettunich’s bills show that Brougham called him to say that they wouldn’t have to reply so there was no motion hearing.
Brougham asked Nottingham to incarcerate me because I filed a rule 60 b(3) action in the D of Columbia. (05-01283) I based jurisdiction on another insurance company that was run from DC, Mutual Insurance Limited of Bermuda, and apparently the judge accepted that. The State of Colorado pled the 11th Amendment but didn’t mention Rooker Feldman. Then the State of Colorado counsel went to work for David Brougham at Hall & Evans and appeared in federal court against me with the lawyer for Mutual Insurance Limited of Bermuda to ask former judge Nottingham to issue a warrant for my arrest because I filed a motion in DC.
By: Kay Sieverding on December 29, 2009
at 6:56 am
PS In reading this over I see I neglected to clarify that according to the city attorney bills, the attorney who claimed to represent the State of Colorado, Brougham called him to say that the clerk for the federal magistrate called him to say that they wouldn’t have to reply 6 months before the magistrate said that. Also, Lettunich billed for a conference call w Brougham and Magistrate Schlatter which we were not informed about until we received the bill 15 months later.
Grace Olech v. Village of Willowbrook is an example of a case decided in federal court all the way. In the 8th Circuit, Chief Judge Posner found “In Esmail v. Macrane, 53 F.3d 176 (7th Cir.1995), we held that the equal protection clause provides a remedy when “a powerful public official picked on a person out of sheer vindictiveness.” Id. at 178. Although the clause is more commonly invoked on behalf of a person who either belongs to a vulnerable minority or is harmed by an irrational difference in treatment, it can also be invoked, we held, by a person who can prove that “action taken by the state, whether in the form of prosecution or otherwise, was a spiteful effort to ‘get’ him for reasons wholly unrelated to any legitimate state objective.” Id. at 180. See also Indiana State Teachers Ass’n v. Board of School Commissioners, 101 F.3d 1179, 1181-82 (7th Cir.1996); Ciechon v. City of Chicago, 686 F.2d 511, 522-24 (7th Cir.1982); Batra v. Board of Regents, 79 F.3d 717, 721-22 (8th Cir.1996); Yerardi’s Moody Street Restaurant & Lounge, Inc. v. Board of Selectmen, 932 F.2d 89, 94 (1st Cir.1991); LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980). Grace Olech brought suit against the Village of Willowbrook and two of its high officials in reliance on Esmail’s principle and was tossed out on the defendants’ Rule 12(b)(6) motion on the ground that the facts pleaded in her complaint did not fit the mold of Esmail.” The federal courts have also ruled on many other complaints involving zoning and land use regulation.
In my case, I went to state court to try to stop the construction of a multi-building bed and breakfast 10 feet from my property in a low density residential zone. The state judge ruled that only the city can enforce its own laws and that as an adjoining neighbor I lacked standing. That was contrary to the Colorado Supreme Court ruling in Roosevelt v. Beau Monde Company, 384 P.2d 96, 152 Colo. 567 (Colo. 07/22/1963) that adjoining neighbors have standing in zoning disputes. Later it turned out that the judge who ruled that, Joel Thompson, was living with a woman who was at that time under investigation by the DEA and who was arrested a year later after a leak by the police that she was under investigation by the DEA. Then it turned out that my former neighbor the city council president had been convicted of conspiracy to sell hashish. At the time I had heard that he was a drug dealer and asked the city council and the police about it but the only response I got was from a city council member who said that the police confirmed that Bennett did not have a drug related conviction, which was obviously untrue. So my theory is that Bennett heard about the judge’s girlfriend’s legal problems and blackmailed the judge. Another problem I had at this hearing is that when I went to the city and asked to buy a certified copy of the city code what they sold me was not properly “certified” and at the hearing they wouldn’t let me use their copy. Most of my damages occurred after that hearing and couldn’t have been included with my motion for an injunction.
http://www.exploresteamboat.com/news/2009/sep/30/candidates_divided_financing_issue/
http://www.steamboatpilot.com/news/2001/aug/22/judge_quits_murder/?print
The idea of federal court is to provide a less politicized forum than state court. When they claim rooker-feldman that just means they don’t want a hearing on the merits.
http://marvin-heemeyer.com/en/ is a web site about a man some 100 miles away who had an unresolved zoning dispute. At the time of the events, I read that he paid a law firm called Dietz in Boulder $50,000 to sue the City of Grandby in state court but that seems to be missing from the various websites although some of them refer to an unsuccessful lawsuit. For unpublished reasons Marvin Heemeyer’s case was dismissed. The judge in that case, Doucette, was a retired judge from Steamboat. Doucette ruled against my petition to get a special prosecutor to look at land use regulation in Steamboat Springs and he wasn’t even assigned to my case, which was under Thompson who said in court he might appoint a special prosecutor.
What I heard is that when they want to fix a case they transfer it from the assigned judge to a retired or substitute judge so there is less of a record in case any questions are asked. They use senior judges relying on deference to their age and with their health as a backup if there is any sort of investigation. The idea is that federal court is supposed to be more open and transparent, and at least federal court has PACER. However, I think that the case assignments are fixed in federal court so there is less of an advantage. I think that the insurance companies pay the clerks to assign federal judges they can influence. I think the insurance companies pay on-going protection to the clerks and various other judicial employees much like some criminal enterprises have been found to pay the police. One support of this theory is that Brougham billed Lloyds for a discussion of case assignment issues and they had a fax about that and 6 months later my case was transferred to Nottingham, without assignment by the clerks. I was involved with other unsuccessful attempts to get a hearing on the merits in federal court and in most of them there were judges who recused without stating a basis for conflict. When I filed in MN, the clerk kept me standing there for about 20 minutes and went in a back room and made phone calls and then came back and told me I was assigned to a senior judge. He ruled that I couldn’t represent myself in federal court.
By: Kay Sieverding on December 29, 2009
at 2:19 pm
“We have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986) (internal quotation marks omitted). “Over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.” Carey v. Piphus, 435 U.S. 247, 257-258, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. Cf. Stachura, supra, at 306.
The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.”
Both of these provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In general, exhaustion of state remedies “is not a prerequisite to an action under § 1983,” Patsy v. Board of Regents of Fla., 457 U.S. 496, 501, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982)
ROY HECK v. JAMES HUMPHREY ET AL. (06/24/94)1994.SCT.44209
“The 1871 Congress intended § 1 to “throw open the doors of the
United States courts” to individuals who were threatened with, or who had
suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep.
Lowe), and to provide these individuals immediate access to the federal
courts” PATSY V. BOARD OF REGENTS OF STATE OF FLORIDA, 457 U.S. 496 (1982)
However, before you get all stirred up, you must realize that we don’t have the same rights we had 25 or 30 years ago. The federal courts are now mostly for rich people and businesses. The judges apparently only have time to dismiss pro se cases and a big percentage of cases claiming federal issues are pro se because even ones that aren’t that complicated rack up about $500,000 in legal bills. Punitive damages are taxable and legal bills paid by individuals are not tax deductible. If you go on a percentage and then part ways with your attorney, you probably have to pay him anyway. There’s no way to know that he isn’t selling you out. The SC amended the judicial canons in 2009 after I filed an appeal of a NO PRO SE dismissal to say that a court must hear a person and their lawyer, i.e. even if you have a lawyer they must still hear you, but even after that the federal courts are still issuing NO PRO SE orders.
http://knowyourcourts.com/Smith/09CV01018/2009-11-19_order-ofDismissal.pdf
The federal rules of civil procedure say that a clerk must docket what they receive despite local rules but just this year the District of Colorado issued a no docketing order in 02-cv-1950 and frequently the clerks don’t docket pro se pleadings. This is easy because they deny pro se litigants ECF.
If the federal courts were committed to adjudicating constitutional issues they would allow ECF for civil litigants, because it saves time and money and the drop down menus are helpful. Congress ordered all federal courts to provide alternative dispute resolution to all non prisoner civil cases and they have a special fund to pay for it, but most federal courts deny alternative dispute resolution procedures to pro se litigants. That way they don’t have to verify that the pro se litigants even know why their cases are dismissed. Then if plaintiffs complain about deviations from written procedure, they attack the plaintiff. So the so-called Rooker-Feldman doctrine is only one obstacle to getting a hearing on the merits. The Rooker Feldman doctrine is not listed in Rule 12 as a basis for dismissal. When “illegality” is the basis for an affirmative defense, under Rule 8 the defense is supposed to file an answer and there is supposed to be discovery. But my impression is that Rooker Feldman is usually pled as a motion to dismiss with no stipulations of fact. In a motion, the defense can simply restate the plaintiffs’ factual allegations and change them. In my case, they even restated the dates when pleadings were docketed. I filed long and short versions with and without exhibits and the magistrate just wrote that I failed to allege any facts or that there was no reason to what happened and he ignored US and Colorado Supreme Court decisions about the definition of claims preclusion and the state of limitations. For instance, in Colorado if there are two alternative theories and one has a longer statute of limitations a plaintiff can use the claim with the longer period but in my case they claimed that if there was a possible claim for defamation the claims had to be brought within one year and couldn’t be brought as a prima facie tort, fraud, or section 1983 action.
By: Kay Sieverding on December 29, 2009
at 3:51 pm
Most of the state constitutions have a right to remedy. http://en.wikipedia.org/wiki/List_of_U.S._State_constitutional_provisions_allowing_self-representation_in_state_courts
http://org.law.rutgers.edu/publications/lawjournal/38_4/16MerrillVol.38.4.pdf
but I have never heard the term in a federal decision although federal courts are bound to state laws by the principles of conformity and outcome independence.
http://www.cardozolawreview.com/content/30-2/BRILL.30.2.pdf
If you file originally in state court, the defendants but not the plaintiff can move to remand to federal court if you state a constitutional claim.
Whether the plaintiff is remanded to state or federal court it always hurts the plaintiff because it can take a couple of years. During that time the defense can intimidate your witnesses and destroy evidence. They can attack the plaintiff’s reputation and try to get him to declare bankruptcy by making him unemployable, failing to pay medical bills, or demanding that he pay their legal bills, which are of course always really expensive and which they claim don’t require a finding of fraud. If you declare bankruptcy, then they claim that the lawsuit has to be pursued by the bankruptcy trustee, which of course never do. See Sandra Marshall v. Honeywell Technology Solutions DDC 05-2502.
It is also in my opinion really bad strategy to file in pauperous because if you do the courts can just sua sponte dismiss while telling the public you can’t afford $350 and generally ridiculing you with something they will publish on the Internet. Your financial statements are then made available to your defendants and anyone else who wants them. The broke prisoner law 28 USC Section 1651 allows only three in pauperous filings but the 10th Circuit applies that law to litigants who pay full price if they are pro se even though that is not what the statute says. Prisoners usually end up being ordered to pay the full filing $350 federal filing fee as well even if it uses up their twenty cents per hour prison pay and Christmas presents for years so that they can’t even buy paper or medical services. That is useful because it deters them from going to court again. Habeas Corpus petitions and complaints of mistreatment in detention are usually pro se because the federal public defenders are not funded for civil matters, which is what these are considered.
The bottom line is that if government officials are corrupt bullies, individuals are in a really bad place. They can’t even immigrate these days because other countries generally don’t take refugees from the U.S.
By: Kay Sieverding on December 29, 2009
at 5:07 pm
Konok alleged that the zoning hearing board “held hearings without proper notice”.
This is one of two recent cases reviewed in the Law of the Land Blog regarding procedural due process in Pennsylvania. The other one was reviewed on 1/3010 and was set in Lower Southhampton.
The Pennsylvania plaintiffs could potentially compare notes.
By: Kay Sieverding on February 5, 2010
at 8:34 pm