Addendum - Misinformation in the Pennsylvania Attorney General's Brief

Addendum - Misinformation in the Pennsylvania Attorney General's Brief

- The Appellants Respond to the Misinformation provided by the Pennsylvania Attorney General in the Appellee Brief dated March 3, 2014.

STATEMENT OF JURISDICTION

This is a constitutional case, brought pro se by two individuals, pursuant to 28 U.S.C. §~ 1331, 1343, 1345 (see appellants brief, at 3), the district court does indeed have subject matter jurisdiction over the appellants claims, as documented.

The matter is a constitutional challenge. The Attorney Generals incorrect use of the word purport improperly suggests that this Court should not consider the plaintiffs' allegations in the constitutional challenge as true and factual.

The matter is not brought pursuant to 42 U.S.C 1983. The inaction of Attorney General Kathleen Kane was not an abuse of power. The Attorney General's neglect was 'lawful, but unconstitutional.'

This appeal is from a final order, dismissing the case, entered on October 29, 2013 (Doc. No. 73). The notice of appeal was filed on December 2, 2013 (Doc. No. 76). The notice of appeal was timely filed, this Court has appellate jurisdiction by virtue of 28 U.S.C. § 1291.

STATEMENT OF ISSUES

Two pro se individuals attempted to challenge the constitutionality of Rule 1.6 of the Rules of Professional Conduct, which is applicable to licensed attorneys, by serving a Constitutional Challenge upon the Attorney General of Pennsylvania (and 55 other Attorneys General).

Their Challenge was improperly dismissed, and the Plaintiffs commenced this timely Appeal to the Third Circuit Court.

STATEMENT OF THE CASE

Healy's and Krautheim's Contentions.

Terance Healy and Todd M. Krautheim both residents of Pennsylvania filed this pro se civil action for themselves and in the name of the United States against the Attorney General of Pennsylvania, Kathleen Kane; 49 other state Attorneys General; and the Attorneys General of the District of Columbia, American Samoa, Guam, the Northern Mañana Islands, Puerto Rico, and the Virgin Islands (See Doe. No. 1, Complaint, ¶ 1). In their 124-paragraph complaint, Healy and Krautheim “challenge the constitutionality of Rule 1.6 Confidentiality of Information of the Rules of Professional Conduct” (Id, ¶ 5).

The Attorney General indicates that the precise legal basis for this claim is difficult to discern. The difficulty is likely due to the failure of the Attorney General to review and address the series of events reported by the Plaintiffs, and others.

The Attorney General's Appellee Brief page 3 misinforms the Court by incompletely paraphrasing The Pennsylvania Constitution Article V, 10(c) omitting the condition whereby the Supreme Court lacks authority when not consistent with the Constitution and when the rules abridge, modify and deny the substantive rights of any litigant.
“Exercising its authority under PA. CONST. art. V, § 10(c) to prescribe general rules ... for admission to the bar and to practice law,” the Pennsylvania Supreme Court promulgated the Rules of Professional Conduct in 1987. See, e.g., Seitzinger v. Commonwealth, 25 A.3d 1299, 1305 .n.7 (Pa. Cmwlth. 2011), aff'd, 617 Pa. 597, 54 A.3d 20 (2012). “

Rule 1.6 is titled CONFIDENTIALITY OF INFORMATION. The Rule is referred to throughout the Rules of Professional Conduct. The confidentiality of information is not limited to client information.

Healy and Krautheim have explicitly acknowledged that “Rule 1.6 does not directly apply to the Pro Se Plaintiffs” but, they add, “it indirectly results in their loss of constitutionally protected rights? (Doc. No. 5, at 2).

The Attorney General has clearly been able to discern the legal basis for the plaintiffs' claim. Plaintiffs' have indicated the indirect result of Rule 1.6 denies them of constitutionally protected rights and liberties. A Constitutional Challenge of law is appropriate whether the denial of constitutional rights is direct or indirect.

The Attorney General further incorrectly characterizes the plaintiffs constitutional challenge document suggesting the document consists of argumentative assertions and legal conclusions.

In terms of facts, the Attorney General alleges that the plaintiffs' have represented themselves in protracted Pennsylvania state court proceedings, during which their constitutional rights allegedly were violated (See Doc. No. 1, Complaint, ¶~ 6-106). The Attorney General indicates her understanding that, Rule 1.6 has, supposedly, caused the state courts to thwart the plaintiffs' efforts to obtain justice. The Attorney General neglects to indicate her inaction and non-responsiveness to the problem when presented directly to her by the plaintiffs, and others.

The Attorney General is also again indicating the ability to discern the legal basis for the plaintiffs' claim which contradicts her earlier statement.

Plaintiffs have provided a brief narrative and copies of the court dockets (as Admissions on October 19, 2013) for their cases in support of their experience with the resultant injustice experienced due to Rule 1.6.

Healy and Krautheim did indeed attempt, in person, to raise their concerns about Rule 1.6 with Attorney General Kane, with the Disciplinary Board of the Supreme Court of Pennsylvania, and with the Pennsylvania Judicial Conduct Board (Id., ¶~ 57-68). Their efforts did go unheeded, although the Attorney General did send a representative to meet with the plaintiffs to discuss the matter in the middle of the Strawberry Square mall while sitting on the floor.

The victim of injustice learns to accept the disrespectful response from those in authority who have been convinced incorrectly that they do not have the lawful ability to act to address a constitutionally defective law enacted without constitutional review by the Pennsylvania Supreme Court.

District Court Proceedings.

After receiving the complaint, Attorney General Kane sought an extension of the responsive pleading deadline and a waiver of pro hac vice requirements for her non-Pennsylvania counterparts (See Doc. No. 2). In making this request, Attorney General Kane suggested that, if the district court were to grant the motion to dismiss she was planning to file, the court's reasoning would probably apply to Healy's and Krautheim's claims against the non-Pennsylvania defendants as well. For that reason, there seemed to be no point in requiring all of the defendants to file largely duplicative responsive pleadings simultaneously.

On September 6, 2013, the Pennsylvania Attorney General filed seeking an extension of the responsive pleading deadline specifically indicating that she does NOT represent the non-Pennsylvania Attorneys General.

The Attorney General neglects to indicate how her non-Pennsylvania counterparts were made aware of her request for extension of the responsive pleading deadline which she neglected to serve to them by mail.

The non-Pennsylvania Attorneys General had neglected to register for the Electronic Case Filing system to receive electronic distribution of case documents.

The Attorney General's Request was filed after her 'answer due' date of September 5, 2013.

The Attorney General's Certificate of Service indicates a reliance upon the ECF system to distribute the document to the non-Pennsylvania counterparts, but the non-Pennsylvania counterparts were not registered in the ECF system.

The District Court Order granting the extension was signed on September 16, 2013, filed on September 17, 2013 and mailed on September 17, 2013.

During the interim, the non-Pennsylvania Attorneys General who had not been served with the request for extension of the responsive pleading deadline
- failed to file an appearance,
- failed to file an answer, and
- failed to register with the ECF system
before their respective 'answer due' date had passed..

The Plaintiffs' respectfully request the Court take judicial notice of the failure of 55 Attorneys General to respond to the Constitutional Challenge and Summons properly served upon each Attorney General upon receipt of the Summons documents from the Clerk of Courts..

The Plaintiffs' respectfully request the Court take judicial notice of the failure of the Clerk of Courts to enter the “Summons Returned Executed' information into the docket when filed with the clerk on September 6, 2013. The Clerk of Courts failed to enter the information properly into the docket until October 18, 2013.

The Plaintiffs' respectfully request the Court take judicial notice of the failure of the non-Pennsylvania Attorneys General to file any document with the court by their respective 'answer due' date.

The Plaintiffs respectfully request the Court take judicial notice of the failure of the Court to respond to the Plaintiffs' Request for ECF filing and access when requested on September 6, 2013, September 9, 2013, and October 18, 2013. Approved by the Court on October 23, 2013.

The Plaintiffs' respectfully request the Court take judicial notice of the denial of the MOTION FOR CORRECTIONS TO THE DOCKET FOR THIS MATTER as the docket misrepresents the documents which have been filed with the Clerk of Courts. Motion filed on October 21, 2013. Motion Denied October 23, 2013 without opportunity for any of the fifty six (56) Attorneys General to respond to the motion.

The Attorney General suggests that initial responses to the complaint by the non-Pennsylvania defendants might well have been longer and more elaborate than the Pennsylvania Attorney General's response. The docket indicates the mystery of the failure of fifty-five (55) non-Pennsylvania Attorneys General failing to take any action in the matter based upon documents which they were not provided.

The docket further indicates the removal of the non-Pennsylvania Attorneys General as parties and the addition of fifty-five (55) unrepresented parties appearing pro se on September 16, 2013.

On October 21, 2013, Plaintiffs filed fifty-five (55) Motions for Indication of Intention to Default and served it upon each of the Attorneys General who had neglected to respond to the Summons and Constitutional Challenge, register for the ECF system, and who had not been served with the Motion for Extension filed by the Pennsylvania Attorney General. (Doc. No. 14-67).

On October 23, 2013, The Court summarily dismissed the motions without allowing any time for any of the Attorneys General to respond to the Plaintiffs' Motions. (Doc. No. 70).
Any effort to involve the fifty-five non-Pennsylvania Attorneys General, who were properly served the constitutional matter by the Plaintiffs, was prevented by the Court.

In the Court's memorandum dismissing the matter, the Court provided contradictory statements regarding application of the Rooker-Feldman doctrine accurately indicating that the doctrine did not warrant dismissal (at page 8), and speculating and interpreting a situation where the doctrine would apply. The Court's incorrect conclusion of Rooker–Feldman requiring abstention from the matter is ultimately incorrect as it is based on the speculation and not on the facts of the matter.

The Court's memorandum additionally incorrectly indicated that the Younger abstention also warranted dismissal of the matter.

The Court's memorandum then further incorrectly indicates that the plaintiffs' have failed to state a claim and that Article III warrants dismissal. Article III standing of the constitutional issue is established in the plaintiffs' complaint and further expanded in this document.

The plaintiffs' have made their constitutional claim and served it upon the attorney General as required by the Federal Rules of Civil Procedure (Rule 5.1).