Kamasinski v . Fitzgerald, et a l . CV-03-205-M 07/16/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Theodore Kamasinski, Plaintiff

v. Civil N o . 03-205-M Opinion N o .

Edward Fitzgerald, III, Peter W . Heed, Daniel S t . Hillaire, and Martha Van Oot, Defendants

O R D E R

Invoking the provisions of

, veteran pro se

litigant Theodore Kamasinski brings this action against New

Hampshire Superior Court Associate Justice Edward Fitzgerald,

III, New Hampshire Attorney General Peter Heed, Merrimack County

Attorney Daniel S t . Hillaire, and New Hampshire Bar Association

President Martha Van Oot, each in his or her official capacity.

Kamasinski claims that his constitutionally protected rights have

been (and/or will be) violated if this court does not intervene

to: (1) block the enforcement against him of an injunction

entered by the state superior court (which enjoined Kamasinski

from engaging in the unauthorized practice of l a w ) ; and (2)

declare that the state court’s order is “in violation of the United States Constitution and

.” Complaint at

24. 1

Each defendant moves to dismiss Kamasinski’s complaint.

Kamasinski objects.

Background

Kamasinski did not attend law school, nor is he admitted to

practice law in this or any other state. Nevertheless, he

derives at least a portion of his income by providing legal

advice and representation to citizens of New Hampshire. That

fact, particularly in light of New Hampshire’s statutory

provision barring those who are not licensed attorneys from

“commonly” engaging in the practice of law, N.H. Rev. Stat. Ann.

(“RSA”) 311:7, has prompted a fair amount of litigation in the

1 Of course, the state court’s order cannot be “in violation of” section 1983, since that statute does not vest citizens with any substantive rights. Instead, it merely provides a vehicle by which individuals may pursue civil actions against state actors for alleged violations of their federally protected statutory or constitutional rights. See, e.g., Graham v . Connor,

(1989) (“As we have said many times, § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.”) (citation and internal quotation marks omitted).

2 state judicial system concerning the legality of Kamasinski’s

ongoing representation of clients.

The piece of state court litigation relevant to this

proceeding was initiated in 2001. Kamasinski filed a petition

for declaratory judgment in the state superior court, asking the

court to declare that he was not engaged in the unauthorized

practice of law. Respondents (defendants in this action), New

Hampshire’s Attorney General and the state bar association

president, filed a cross-petition, seeking an order enjoining

Kamasinski from providing any legal representation or rendering

any legal services that violate RSA 311:7. See RSA 311:7-a

(authorizing the attorney general to “maintain an action for

injunctive relief in the supreme or superior court against any

person who renders, offers to render, or holds himself or herself

out as rendering any service which constitutes the unauthorized

practice of law” and also authorizing the state bar association

to intervene in that proceeding).

The procedural history of that case is described in detail

in the superior court’s order of January 3 0 , 2003. Kamasinski v .

3 McLaughlin,

(N.H. Super. Jan. 3 0 , 2003).

Essentially, after Kamasinski repeatedly refused to comply with

discovery obligations in that case, the court granted

respondents’ motion to compel and ordered Kamasinski to produce

the requested discovery material and information. Nevertheless,

Kamasinski steadfastly refused. In pleadings filed with the

court, Kamasinski did not deny that he had failed to comply with

the court’s order. Instead, he challenged the court’s authority

to compel him to produce such discovery.

at *1 n.1. In

response, the court directed him to comply fully with its

discovery orders, or risk having all relevant and material facts

alleged against him deemed confessed. Kamasinski neither

complied with the order nor did he move the court to reconsider.

at * 1 .

After affording Kamasinski ample time to produce the

relevant discovery materials (which he did not d o ) , the court

entered its order of January 3 0 , 2003, which is the subject of

this litigation. In i t , the court concluded that Kamasinski was

engaged in the unauthorized practice of law, in violation of RSA

4 311:7, by virtue of having commonly practiced law without a

license.

* 3 . The court went on to conclude that:

[E]ven if Mr. Kamasinski’s activities were protected by RSA 311:7, the Court finds that the well pleaded facts now taken as confessed establish that Mr. Kamasinski is not of good character, and thus, does not qualify to file an appearance on behalf of another pursuant to RSA 311:1.

at * 4 . 2 Accordingly, the respondents’ cross-petition for

injunctive relief was granted and Kamasinski was enjoined from

engaging in the unauthorized practice of law. Among other

things, Kamasinski was enjoined from: (1) giving legal advice to

anyone; (2) filing an appearance on behalf of any litigant in a

state court or state administrative proceeding; (3) drafting or

participating in the drafting of pleadings, briefs, or memoranda

on behalf of any person other than himself; and (4) negotiating

legal rights or responsibilities on behalf of anyone other than

himself.

at * 5 .

2 RSA 311:1 provides that, “A party in any cause or proceeding may appear, plead, prosecute or defend in his or her proper person, that i s , pro s e , or may be represented by any citizen of good character. For the purposes of this section, a citizen shall be presumed to be of good character unless demonstrated otherwise.” (emphasis supplied).

5 Kamasinski filed a timely motion for reconsideration of that

order, which the superior court denied in an unpublished written

opinion. Kamasinski v . McLaughlin, N o . 2001-E-386 (N.H. Super.

April 1 1 , 2003). He did not, however, take an appeal to the New

Hampshire Supreme Court. Instead, on May 1 3 , 2003, he filed the

instant federal petition for declaratory and injunctive relief,

by which he seeks a judicial declaration that the state superior

court’s order of January 3 0 , 2003, enjoining him from engaging in

the unauthorized practice of law, is unconstitutional. He also

seeks a temporary and permanent injunction prohibiting defendants

from enforcing that state court order.

Discussion

Each defendant advances several grounds in support of his or

her motion to dismiss, including the Rooker-Feldman doctrine,

principles of judicial and prosecutorial immunity, abstention

doctrines, and comity. Kamasinski counters by saying none of the

familiar arguments advanced by defendants is applicable to this

particular case. He argues that this court should determine that

it has subject matter jurisdiction over his claims and that it

should neither dismiss nor stay these proceedings. He is

6 mistaken on several fronts. But, because it is plain that the

Rooker-Feldman doctrine precludes this court’s exercise of

jurisdiction over Kamasinski’s complaint, the alternate grounds

for relief advanced by defendants need not be addressed, nor is

it necessary to discuss Kamasinski’s misguided legal theories.

The Rooker-Feldman doctrine precludes a federal district

court from reviewing a final judgment entered in a state court,

and from considering claims that are inextricably intertwined

with those raised in the state court proceeding. See Rooker v .

Fidelity Trust Co.,

(1923); District of

Columbia Court of Appeals v . Feldman,

(1983).

See also Wang v . New Hampshire Bd. of Registration in Medicine,

(1st Cir. 1995). Federal claims are

inextricably intertwined with state court proceedings (even if

precisely the same claims were not raised previously in state

litigation) if the party had an opportunity to raise those claims

in the state court and if their resolution in federal court would

effectively provide a form of federal appellate review of the

state court’s decision. See Pennzoil C o . v . Texaco, Inc., 481

, 25 (1987) (Marshall, J., concurring); Lancellotti v . Fay,

5 , 17 (1st Cir. 1990).

Moreover, once a state court issues a final judgment, a

federal district court lacks jurisdiction to review that decision

even if the state judgment is patently wrong or was entered

following patently unconstitutional proceedings. See Feldman,

. Thus, a litigant may not seek to reverse a

final state court judgment “simply by casting his complaint in

the form of a civil rights action.” Ritter v . Ross,

(7th Cir. 1993) (citation omitted).

In response to defendants’ invocation of the Rooker-Feldman

doctrine, Kamasinski says:

Plaintiff argues against the application of the Rooker- Feldman abstention doctrine on grounds that the definition of the practice of law crafted by state Judge Fitzgerald i s , in effect, judicially created legislation, or a statute or ordinance, which regulates the Plaintiff’s behavior in a fashion that is unconstitutional and should be treated accordingly - that i s , as a statute or ordinance rather than as a judgment.

8 Plaintiff’s memorandum in opposition to dismissal (document n o .

10) at 1 (emphasis supplied). Because the state statute

governing the unauthorized practice of law does not define the

word “commonly” or the phrase “practice of law,” Kamasinski

apparently believes that Judge Fitzgerald unconstitutionally

encroached upon the province of the legislative branch when he

gave meaning to those words and then applied them (as so

construed) to the case pending before him, concluding that

Kamasinski was violating state law by commonly practicing law

without a license. Thus, Kamasinski asks this court to treat the

superior court’s order as if it were an (allegedly)

unconstitutional statute.

Kamasinski’s view of the state court’s order is flawed and

appears to be based on a fundamental misunderstanding of the role

(and constitutional authority) of the judicial branch. As Chief

Justice Marshall observed more than two hundred years ago, “[i]t

is emphatically the province and duty of the judicial department

to say what the law i s . Those who apply the rule to particular

cases, must of necessity expound and interpret that rule.”

Marbury v . Madison,

(1803). Consequently, in the

9 absence of a statutory definition of the words “commonly” and

“practice of law,” it is the role of New Hampshire’s courts to

discern their proper meaning and scope. See, e.g., Bilodeau v .

Antal,

9 , 45 (1983) (“The trial court may properly act

to prevent a person . . . from acting ‘commonly’ as legal counsel

when it reasonably appears, as in this case, that to do otherwise

would be to sanction the unauthorized practice of law. . . . Our

holding today does not involve the situation in which a nonlawyer

might appear once as a representative of a party. Nor do we mean

to suggest that there is any single factor to determine whether

someone is engaged in the unauthorized practice of law and,

consequently, may be prohibited from undertaking the legal

representation of another. That determination must be made on a

case-by-case basis.”). 3

3 Kamasinski says the court in Bilodeau “incorrectly empowered the trial courts with a legislative function to determine a definition of the practice of law and to fashion a prospective order based on that definition.” That assertion is not only legally incorrect, but frivolous. A court does not perform “a legislative function” merely by ascribing meaning to ambiguous statutory language. It has long been established that one of the essential functions of the judiciary is to do just that. If the legislative branch should disagree with the courts’ interpretation of a statute, it of course has the constitutional authority to amend the statute to more clearly convey its intent. See, e.g., 42 U.S.C. §1320a-2 (an amendment to the Social Security Act passed by Congress in response to the Supreme

10 As a fall-back position, Kamasinski says his current federal

claims are not barred by the Rooker-Feldman doctrine because he

did not have an adequate opportunity to raise them in the state

court proceedings. Specifically, he says the “state court record

reveals that none of the parties proposed a definition of the

‘practice of law’ or requested that state judge Fitzgerald define

the ‘practice of law.’” Plaintiff’s memorandum at 5 . That

argument is frivolous as well. Kamasinski himself initiated the

state court litigation in an effort to obtain a judicial

declaration that he was not engaged in the “unauthorized practice

of law,” as that phrase is used in RSA ch. 311. In their cross-

petition, the respondents moved the court to enjoin Kamasinski

from engaging in the unauthorized practice of law. Consequently,

whether Kamasinski was engaged in the “unauthorized practice of

law” was at the very core of those state court proceedings. And,

to resolve that dispute, the court necessarily had to take the

preliminary step of ascertaining what the legislature meant to

convey by the words “practice of law.”

Court’s opinion in Suter v . Artist M.,

(1992)).

11 Little more need be said about Kamasinski’s legal

arguments. It is sufficient to note that they are not

persuasive. His petition for declaratory and injunctive relief

is little more than a thinly disguised effort to obtain federal

review and reversal of the injunction issued against him by the

state superior court. To the extent Kamasinski entertains a good

faith belief that the state court injunction operates to deprive

him of federally protected rights, he could have (and should

have) taken an available appeal to the New Hampshire Supreme

Court. If he were dissatisfied with the outcome in that forum,

he of course could have appealed his case to the United States

Supreme Court by way of a petition for certiorari. He did not.

And, it is plain that this is not the proper forum in which to

pursue an appeal of a final judgment issued by an intermediate

state court - even an appeal cast in terms of a civil rights

action. As the court of appeals for this circuit recently

observed:

The Rooker-Feldman doctrine - with certain exceptions (e.g., habeas corpus) - precludes a lower federal court from entertaining a proceeding to reverse or modify a state judgment or decree to which the assailant was a party. Although res judicata doctrine would often achieve similar effects, Rooker-Feldman is at least quasi-jurisdictional, premised on the rule that among

12 federal courts only the U.S. Supreme Court has authority to invalidate state civil judgments.

Mandel v . Town of Orleans,

(1st Cir. 2002)

(citations omitted) (emphasis supplied).

Conclusion

To the extent Kamasinski thought the injunction issued by

the New Hampshire Superior Court violated his state or federal

rights, he should have pursued an appeal to the New Hampshire

Supreme Court. He did not do s o , and, under the well-known and

long-standing rule of Rooker-Feldman, this court lacks authority

to entertain his challenge to that state court injunction,

notwithstanding the fact that he has couched his challenge in

federal constitutional terms. Kamasinski, like the plaintiff in

Mandel, “was formally a party to the [underlying state court]

proceeding and was free to ask the state court to undo or revisit

its enforcement order on constitutional or other grounds; [he]

was not free to secure its effective invalidation by a federal

judge.”

.

13 At this juncture, it is probably appropriate to note that

Kamasinski is not the “typical” pro se litigant - that i s , one

who appears only rarely in state or federal court to advance his

or her own personal interests. Instead, he is a frequent

litigant in his own right and actually holds himself out to the

public as a person schooled in the law, and one who possesses the

skill, knowledge, and ethical standards necessary to adequately

represent the legal interests of others.

Additionally, Kamasinski has represented to this court that,

“[b]efore filing his federal complaint, [he] carefully considered

all the abstention doctrines, including Rooker-Feldman, and

satisfied himself that subject matter jurisdiction exists. After

studying binding and relevant case law, [he] concluded that if

the federal district courts have unquestionable jurisdiction to

determine the constitutionality of any state statute (enacted by

legislative action), the abstention doctrines cannot preclude a

challenge to a court issued statute.” Plaintiff’s memorandum at

3. S o , notwithstanding his fairly substantial experience in the

judicial system and his claim to have “carefully considered” the

impact of Rooker-Feldman on this action, Kamasinski still elected

14 to bring a civil action that is plainly without legal foundation.

At this point, it is fair to say that Kamasinski ought to at

least understand, if not accept, the predictable application of

Rooker-Feldman and other relevant legal concepts (e.g.,

abstention, res judicata, collateral estoppel) that have played a

role in resolving this and other litigation in which he has been

either directly or indirectly involved. While Kamasinski is not

educated or trained in the practice of law, and cannot fairly be

held to the high standard of substantive knowledge to which

attorneys are routinely held, still, he professes to know and,

based upon his experience in this and other judicial fora, should

now know, much more than the average pro se litigant – both

substantively and procedurally. In short, he is in a far better

position than the average pro se litigant in terms of recognizing

meritless and frivolous claims. In the future, therefore, he

will be held to a much higher standard than is accorded

unsophisticated pro se litigants when it comes to ruling on

motions for attorneys’ fees and sanctions. Meritless litigation

brought by this plaintiff that imposes upon the time and

15 resources of named defendants will no longer be measured against

the deferential standard applied to genuinely uninformed pro se

plaintiffs.

On this occasion, however, defendants’ motions for

attorneys’ fees are denied. To be sure, Kamasinski’s efforts to

deflect the application Rooker-Feldman (e.g., by characterizing

the state court’s order as “judicially created legislation”) are

simplistic and silly, but then, he probably considers those

arguments to be novel and imaginative. Nevertheless, his points

do at least facially recognize and address relevant legal issues.

It’s a stretch, but, however off-the-mark, his assertions

arguably seek to raise the possibility of an extension of current

law to reach his claims, albeit doubtfully in complete good

faith.

S o , on this occasion, the combination of Kamasinski’s lack

of legal education, training, and skill, enure to his benefit.

That, coupled with his weak attempt to at least focus on

dispositive issues, is enough to barely escape sanctions for

bringing frivolous claims. That will not, however, be the case

16 in future litigation, as he is now well aware that lower federal

courts do not review state court judgments, and he will be

presumed to be well-versed in the law of abstention, res

judicata, collateral estoppel, immunity, and, of course, Rooker-

Feldman.

In light of the foregoing, defendants’ motions to dismiss

(document nos. 3 , 4 , 6, and 8 ) are granted and Kamasinski’s

complaint is dismissed with prejudice. Kamasinski’s request for

attorney’s fees, as well as defendants’ cross-motion for

attorney’s fees, are denied. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 1 6 , 2003

cc: Theodore Kamasinski Martin P. Honigberg, Esq. Daniel J. Mullen, Esq. John A . Curran, Esq. Joseph F. McDowell, III, Esq.

17