"Great lords and gentlemen, what means this silence?"

1 King Henry VI, Act 2, Sc. iv

INTRODUCTION

Respondent-Appellant seeks a re-hearing due to the erroneous nature of the Court's affirmance [see Appendix, pp. 5-6] of Judge Skretny's sub silentio denial of Respondent's motion for sanctions for nearly two and a half years of unnecessary litigation of a patently frivolous contempt motion which resulted in Respondent being tried in open court without any allegations against him other than completely fabricated ones made up by the trial judge. Respondent's Brief ("Brief") at 13-14.

Respondent seeks a rehearing in banc because the Panel disposed of Respondent's appeal, set forth in eighty pages of briefs, in one paragraph in a summary order. Respondent's appeal was set forth with great clarity in well-documented briefs. Since the Panel dismissed his contentions in one conclusory paragraph and rejected sub silentio most of the issues raised, it is apparent that a petition to the Panel for re-hearing would be inappropriate. Further, Respondent's appeal raises important issues involving due process (see Brief, generally), judicial misconduct (Brief, Point I), and sanctions for frivolous litigation (Brief, Points II and III). Finally, the Panel's decision is contrary to the holdings of numerous cases in this and other federal circuit courts.

ARGUMENT

On June 30, 1993, Plaintiff and lead attorney pro se, Jeffrey M. Blum, distributed out-of-court and by hand a letter to persons not parties to the litigation, which letter has been held a violation of a protective order governing disclosure of a confidential tenure file. At no time in the case did the moving parties allege or prove that Respondent had notice of the order allegedly violated prior to the violation itself. Brief at 36-37. Respondent, Plaintiff's co-counsel, received a copy of the protective order in the mail no earlier than June 30, 1993, and perhaps later. Id.

Counsel for the Intervenor, whose tenure file was the subject of the protective order, moved to hold Respondent in contempt and asked the court to inquire of him whether he gave legal advice to his client about the letter. Defendants' counsel joined in the motion. Both attorneys knew or should have known that Respondent either did not speak to Plaintiff about the letter, or if he had, such communications would be privileged. Both attorneys knew or should have known that if Respondent had advised Plaintiff that the letter would not violate the order, Respondent would have been obligated to come forward with that fact to assist his client in defense of the motion, regardless of the consequences to himself. Both attorneys also knew or should have known that elementary principles of legal ethics dictated that Respondent, short of a court order, refuse to state whether his client had sought his legal advice prior to sending the letter. Brief, Point VI.

Respondent had no involvement with the letter and Plaintiff did not consult him before distributing the letter. Further, both moving counsel stated during the litigation that they were making no allegations against Respondent and possessed no evidence that he was involved with the letter. Brief at 30-31. Instead of deposing Respondent or calling him as a witness against the plaintiff--at which time the issue of privilege could be argued--moving counsel made a motion to hold Respondent in contempt and insisted that the motion proceed to a trial in federal court at which trial they presented no evidence against him.

Though they styled their effort an "inquiry", what they actually sought and obtained was a strange proceeding in which Respondent was tried for contempt in federal court with no valid allegation against him and thus no lawful notice of the possible grounds for liability at such trial. The folly perpetrated on Respondent by Judge Skretny and the moving parties is best illustrated by reference to the stages of a normal civil lawsuit. First, the plaintiff investigates the facts. Second, pleadings containing allegations are served and filed. Third, discovery is generally conducted. Fourth, the defendant may move to dismiss for failure to state a cause of action. Fifth, a trial is held to test the truth of the competing allegations and to determine liability. Sixth, a verdict or decision is made by the trier of fact.

STAGES OF A NORMAL CIVIL LAWSUIT

1. Investigation

2. Pleadings

3. Discovery

4. Motion to dismiss

5. Trial

6. Decision

In this bizarre proceeding, Stages 1, 2, and 3 were eliminated. See, Transcript of Trial, Nov. 6, 1995, pp. 20-24. A motion to dismiss was entertained, however, instead of dismissing the contempt motion for failure to state a cause of action, the trial court--which the Panel held sub silentio was a fair and impartial tribunal--itself alleged, by means of a document falsely described as an order of Magistrate Judge Carol Heckman's, that Respondent had violated the protective order. Brief at 13-15. It did so, however, with no basis whatsoever and with no personal knowledge of the facts. Thus, by no means could this strange document be deemed a proper pleading.

Ironically, the allegation Judge Skretny drafted in order to salvage the frivolous contempt motion from otherwise certain dismissal, was not even sufficient for this purpose under Federal Rules of Civil Procedure 56(e): "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Since Judge Skretny knows this Rule well--see, Spence v. Maryland Cas. Co., 803 F. Supp. 649 (W.D.N.Y., Skretny, J., 1992), aff., 995 F2d 1147 (2nd Cir. 1993)--he should have rejected his own allegation against Respondent as insufficient to defeat summary judgment!

It came to pass that on November 6, 1995, at the moving parties' request, Respondent was tried for contempt without a prefiling investigation (Stage 1), without valid pleadings (Stage 2), and without post-filing discovery (Stage 3), but with the certain knowledge that he could be held in contempt after such trial if the court, in its whim, decided to do so. Transcript of Trial, Nov. 6, 1995, pp. 20-24. Another interpretation of this unusual proceeding is that Stage 1 (investigation) was collapsed into Stage 5 (trial), and that Stage 2 (pleadings) was collapsed into Stage 6 (decision).

Respondent wishes that others could share with him the feeling of being tried for contempt in federal court with no valid allegations against him and thus with no clear notice in advance of the possible grounds for liability. See, JA 806 et seq. In lieu of such personal experience, imagine being deposed in a civil suit, and immediately thereafter having your liability determined by the whim of a judge who had previously made false and baseless allegations against you.

Respondent had cross-moved for sanctions back in July, 1993. See, Reply Brief at 3; JA 684-685. Judge Skretny stayed the motion for sanctions and in fact never allowed it to be heard in open court. See, Docket Entry for Oct. 6, 1993 and DN 213. Instead, he personally accused Respondent of violating the protective order without the slightest bit of evidence. He also falsely stated his reason for issuing the purported order which contained the accusation: Plaintiff had asked for a more definite statement. Brief at 13-15. In truth, the Plaintiff had said the exact opposite. The moving parties tacitly approved of this accusation because it solved their problem of how to make a motion to hold someone in contempt without any evidence or allegations against him. They could now sit by and watch while Judge Skretny prosecuted the Respondent.

In February, 1994, Respondent learned why one Frank Bybel, an old friend of Judge Skretny's, had been mysteriously absent from the case, even though he was a co-respondent in the contempt proceeding. Respondent determined that Bybel and Judge Skretny had had an ex parte communication in which the Judge assured Bybel that he need not retain counsel in the contempt proceeding because he was out of the case. Respondent's counsel, his father and retired State Supreme Court Justice William J. Ostrowski, moved for recusal on these grounds. Docket Entry for February 25, 1994; DN 236; DN 278.

Judge Skretny denied the motion more than a year later, implying that William J. Ostrowski had lied in an affidavit. DN 257. When challenged to produce one shred of evidence in support of this charge (JA 794-796), Judge Skretny failed to respond. Judge Skretny made the absurd statement that he had previously overlooked Bybel's mention in the motion papers. Brief at 16-17. Judge Skretny denied having the ex parte communication, though a mountain of circumstantial evidence indicates that he lied. JA 813. But why rely on circumstantial evidence? Why not depose Bybel and find out? Bybel was subpoenaed, however, Intervenor's counsel, who initially moved for an "inquiry" of Bybel, moved to kill his deposition. JA 717, et seq. The Judge who rescued Intervenor's frivolous motion by making a false accusation against Respondent must be defended at all costs, even at the cost of virtually certain sanctions. How, after all, can an attorney not be sanctioned, for moving to kill the deposition of an adverse party he had been trying, unsuccessfully, to cross-examine for two years? That motion for sanctions is stronger even than Respondent's omnibus motion for sanctions. How can one justify killing a deposition designed to vindicate Respondent's due process right to an impartial tribunal? See, United States v. Jordan, 49 F3d 152 (5th Cir. 1995).

Respondent filed over thirty pages of affirmations and briefs in opposition to the motion and asked for sanctions under Rule 37. JA 745, et seq. Magistrate Heckman and Judge Skretny, however, pretended that Respondent had not filed motion papers and they granted the motion by default. One hand washes the other. Connors & Vilardo performed the valuable service of moving to kill a deposition that would prove that Judge Skretny lied. Judges Heckman and Skretny then made sure Connors & Vilardo would not be sanctioned by granting the motion by imaginary default.

Let us dwell on the killing of the deposition because the Panel decided, sub silentio, that the issue had no merit even after the lurid description of the events at page 44 of Respondent's Brief. Judge Heckman's order of October 5, 1995 (JA 155), states: "this court stayed the deposition of Mr. Bybel to allow for the submission of opposing papers. No briefs were submitted. Instead, on August 17, 1995, respondent Ostrowski submitted objections to this court's August 14, 1995 order (Items 267, 268), along with a request for relief unrelated to intervenor's motion for a protective order. Accordingly, because no opposing papers have been filed in accordance with court's previous order of August 14, 1995, intervenor's motion for a protective order (Item 264) is hereby GRANTED for the reasons set forth therein."

What happens here is that the court intentionally pretends that papers in opposition to the motion were not filed by giving a rationalization that the court hopes will be understood as an innocent mistake. The facts, however, are such that no reasonable person could believe that Judge Heckman made an innocent mistake. Respondent did not file two objections. First, filing two objections is senseless and contrary to the practice and procedure at District Court. Even if Respondent had provided a courtesy copy of the objection to the clerk, the clerk would have filed one copy and forwarded another to the judge. All the judges in District Court know this.

Second, only Document No. 267 is an objection and only No. 267 is labeled an objection. The objection [JA 744] recites the papers filed in opposition to the motion and recites that a "copy" is "filed herewith". Document No. 268, filed on August 17, 1995, Judge Heckman's deadline for submitting a reply to the motion, contains two briefs and two affirmations in opposition to the motion that are delineated in the objection. An examination of the affirmations filed under Document No. 268 proves conclusively that they are in opposition to the motion and not in support of the objection.

The affirmation of William J. Ostrowski [JA 760, et seq.] states at paragraph two that it is "submitted in response to the notice of motion for a protective order. . ." [JA 760] The conclusion asks that "intervenor's motion be denied in its entirety, with sanctions pursuant to Federal Rules of Civil Procedure 26(c) and 37(a)(4)(A)." [JA 768] The affirmation of James Ostrowski [JA 771] states at paragraph one that it is made "in opposition to intervenor's motion to bar the scheduled deposition of Frank Bybel." Id. The conclusion asks for "sanctions" against the moving party for filing a "frivolous motion" (emphasis added) under "Federal Rules of Civil Procedure 26(c) and 37(a)(4)(A)". The contents of both affirmations address the merits of the motion to cancel the deposition.

Several points made in the Memorandum of Law [JA 748, et seq.] can only refer to the motion and not to the objection: Points II and III--"JUDGE HECKMAN SHOULD RECUSE HERSELF FROM THIS MOTION . . ."; Point IV--"THE MOTION SHOULD BE DENIED BECAUSE THE INTERVENOR LACKS STANDING TO SEEK A PROTECTIVE ORDER ON BEHALF OF AN ADVERSE PARTY."; Point V--"THE MOTION SHOULD BE DENIED BECAUSE INTERVENOR HAS FAILED TO ALLEGE, LET ALONE ESTABLISH IN HER PAPERS, THAT SHE WILL BE PREJUDICED BY THE DEPOSITION OF FRANK BYBEL." See also, Point VI. The conclusion states: "This motion is absurdly frivolous . . . It should be denied forthwith." [JA 756]

It is thus beyond dispute that no person capable of reading plain English could state that the papers filed under Document No. 268 were anything but papers filed in opposition to the motion to cancel the deposition of Frank Bybel. A reasonable person "less likely to credit judges' impartiality than the judiciary" (United States v. Jordan, supra) and fully familiar with the facts, would conclude that (1) Judge Heckman lied when she stated that Respondent had filed no papers in opposition to the motion; (2) she did so to protect Judge Skretny from having his denials of ex parte communications contradicted under oath by an attorney; and (3) that Judge Skretny affirmed the order canceling the deposition out of raw self-interest and in intentional violation of Respondent's due process right to an impartial tribunal. Judges Skretny and Heckman therefore erred in failing to recuse themselves from the motion and from the case itself. Thus, the case should be remanded to a different judge for a hearing on whether Intervenor should be sanctioned for filing this motion frivolously and in bad faith (Point III); for litigation of Respondent's omnibus motion for sanctions covering the entirety of the contempt proceeding (Point II); and for an assessment of costs (Point IV). Costs was one of the issues dismissed by the Panel sub silentio. However, contrary to Second Circuit precedent, Respondent, as the prevailing party in the contempt motion, was improperly denied costs sub silentio. Compania Pelineon De Navegacion, S.A. v. Texas Petroleum Company, 540 F2d 53, 56-57 (2nd Cir. 1976), cert. den., 429 U.S. 1041.

The contrasting treatment of parties similarly situated is instructive. When Bybel failed to show up for court back in August, 1993, no one said a word. When Ostrowski showed up for court, filed papers and volunteered much information about his role in the case, he was berated. Brief at 5. When Ostrowski attempted to bring Bybel in for a deposition, he was thwarted by the pretense that he defaulted in the motion. Later, the court took a more honest approach to Respondent's due process rights and simply barred him from filing papers in court. JA 115-116. First, however, Judges Skretny and Heckman barred phone calls and letters to the court (Reply Brief at 8-10); then they pretended that motion papers had not been filed; then they dispensed with oral argument; then Judge Skretny barred Respondent from filing papers. This same judge, however, spoke about the merits of the case on the street with his friend Frank Bybel.

Respondent filed an extremely detailed renewed motion to recuse based on the false denial of ex parte communications and false allegations against Respondent and his attorney. JA 792, et seq. The motion was denied without oral argument and without an opinion. DN 290.

THE SUMMARY ORDER

The Panel made great progress in grasping the nature of Respondent's appeal in the very brief time between oral argument and the filing of the Panel's decision. At oral argument, the Panel was extremely skeptical about whether Respondent had any business being in court. The Panel was concerned about "what it could do for" Respondent. Respondent's entire primary argument was taken up with the issue of appealability that had been raised primarily by the Intervenor's brief at Point I. It is unfortunate that the Panel was initially led astray by the Intervenor with the result that Respondent had little time to address the merits of his appeal.

However, by the time of its decision, the Panel had rejected the contentions of the Intervenor that Respondent was not an aggrieved party. The Panel also rejected the main and bizarre contention of the Defendants that Respondent had made no motion for sanctions. Defendants' Brief at 33. Finally, the Panel issued, for the first time in the long and tortured history of the case, a criticism, albeit a mild one, of Judge Skretny's handling of the case. The result of the decision was therefore anomalous: the Court rejected the main contentions of the Intervenor and Defendants and criticized Judge Skretny, but ruled against the Respondent.

Unfortunately, the Panel's brief discussion of the issue of appealability does not entirely and accurately portray Respondent's stance. Respondent initially argued (at Point II) that the court's failure to address a colorable Rule 11 motion is error and requires a remand for further proceedings. Griffen v. City of Oklahoma City, 3 F3d 336 (10th Cir. 1993). In response to Intervenor's allegation that no appealable issue was before the Court, Respondent stated in his reply brief that "respondent is aggrieved by the District Court's denial, sub silentio, without oral argument or a hearing, of his cross-motion for sanctions." [Reply Brief at 5]

The Panel adopted this latter argument, however, there is no hint in its order that the argument, in support of appealability, originated with Respondent himself or that Respondent had argued that the sub silentio decision was erroneous. Further, arguing about whether Judge Skretny's error was "failing to address a colorable Rule 11 motion" or "denying that motion sub silentio," is largely wordplay. The result in either case is that Respondent is aggrieved with practical finality; his due process rights have been violated; and the matter should be remanded for further proceedings. Instead, however, the Panel affirmed with a mild rebuke to Judge Skretny by means of the extreme understatement: "an explicit ruling would have been preferable."

Here, the ancient elements of due process: the right to file pleadings; the right to be heard; the right to a decision in a form that can be appealed; and the right to have all this take place before an impartial tribunal, are deemed mere "preferences." What has Respondent done--other than litigating against a powerful law school and catching a federal judge engaging in misconduct--to justify being deprived of elementary due process rights Americans have enjoyed for hundreds of years? What fealty does a person owe a legal system that explicitly denies him the right to be heard? Why should a lawyer in good standing for thirteen years and subjected to an admittedly baseless motion for contempt, be denied the same rights each and every one of his clients has ever had?

Respondent has represented people charged with murder, rape and other serious crimes. Each one of them was given their day in court. Respondent has represented people who filed suit in small claims court. Each one of them was given the right to be heard in support of their claims. Respondent is the only litigant he knows of who has been systematically and intentionally denied the right to be heard in court in support of his legal claims. Even one who accuses a sitting President of various torts was held to be:

The Eighth Circuit felt compelled to point out that "the Constitution . . . did not create a monarchy. . . the President, like all other government officials, is subject to the same laws that apply to all other members of our society." Id. at 1358. Should the parties and attorneys who filed a frivolous motion against Respondent have a right not even a sitting President has: immunity from the civil law?

Rule 11 allows persons who make frivolous motions to be later sanctioned. It does not authorize a court to prevent them from making motions in advance even if the court erroneously believes they are frivolous. Just as a court must respect the due process rights of persons who are sanctioned (Satcorp International Group v. China National Silk Import & Export Corporation, 101 F3d 3 (2nd Cir. 1996)), it must respect the due process rights of persons who seek sanctions. See, Szabo Food Serv., Inc. v. Canteen Corp., 823 F2d 1073, 1084 (7th Cir. 1987); see also, Cunningham v. Waters Tan & Company, 65 F3d 1351, 1360-1361 (7th Cir. 1995); Griffen v. City of Oklahoma City, supra.

The Panel held that Judge Skretny did not "abuse his discretion" in denying Respondent's motion sub silentio. How is that possible? How does one exercise discretion on a motion by remaining silent as the Sphinx for two and half years? How does a judge exercise discretion on a motion when he stays that motion and never allows it to be amended, answered, or argued? How does a judge exercise discretion in denying arguments that were never brought to his attention because his own positive actions prevented those arguments from being brought to his attention. Many of the arguments for sanctions set forth in Respondent's briefs were never made known to Judge Skretny because he took positive actions to prevent that from happening. He closed his eyes and covered his ears to those arguments.

Respondent's arguments for sanctions are based on four separate and distinct legal theories and an extremely variegated set of factual and legal arguments. Brief, Point II. One legal theory--Local Rule 83.4--does not even require proof of misconduct by opposing counsel. Brief at 27; Reply Brief at 11, 16-17. Respondent stated in his brief that there were grounds for sanctions he could not even summarize in his brief due to space limitations. Brief at 28. For example, the verbal abuse directed at him by Mr. Vilardo, who three times called him "paranoid" in motion papers. In his brief of October 16, 1995 (DN 284), Mr. Vilardo made the following comments:

To quote Judge Robert J. Ward's question to Mr. Blum during oral argument: "Is that advocacy?" This abusive language, having no legitimate function in the case, was clearly designed for the improper purpose of demeaning Respondent and diminishing his reputation in the eyes of the dozens and perhaps hundreds of people who would read those papers. Therefore, such language is sanctionable under Rule 11 as it was "interposed for [an] improper purpose, such as to harass. . . " See, e.g., Redd v. Fisher Controls, 147 FRD 128 (W.D. Texas 1993); Novak v. National Broadcasting Company, Inc., 779 F. Supp. 1428 (S.D. N.Y. 1992).

Mr. Blum was sanctioned for what the court below believed was verbal abuse of the district court. Mr. Vilardo, however, apparently will be exempt from the same rules.

In economics, it is said that if you want more of something, subsidize it; if you want less, tax it. Similarly, in this case, if the Court wants more of certain types of behavior, affirm the judgment; if the Court wants less, reverse the judgment. If this Court wants more frivolous litigation, violations of due process, ex parte communications, mysteriously killed depositions, and false accusations against respected attorneys, this petition should be denied; if this Court wants less, much less, of these sad tactics, this Petition should be granted.

The Panel sent a clear signal to judges and lawyers following this case in Western New York; the Court, in banc, should send another, entirely different signal to those same judges and lawyers. "Public respect for the judiciary demands this result." United States v. Jordan, supra.

CONCLUSION

Respondent respectfully requests that the Court rehear his appeal in banc.

Respectfully submitted,

_______________________________

James Ostrowski, Esq.,

Respondent-Appellant, pro se

William J. Ostrowski, Esq.,

of counsel on the brief

April 3, 1997