BEFORE THE SUPREME COURT OF PENNSYVANIA
DONALD A. BAILEY:
Petitioner:Atty. Reg. No. 23786
: (Dauphin County)
VS.:
:
OFFICE OF DISCIPLINARY COUNSEL:
HEARING COMMITTEE MEMBERS;:NO.
BRIAN CALI, THOMAS CASALE,:
JOSEPH D. BURKE, MARCEE SLOAN:
Respondents:
PETITION FOR WRIT OF PROHIBITION AND MANDAMUS
AND NOW, comes Petitioner, seeking an extraordinary relief in the form of a Writ of Prohibition against the above captioned Hearing Committee Members, and Mandamus and in support of his Petition for Writ of Prohibition avers as follows:
1.This Court has original jurisdiction of a petition for a writ of prohibition. (see Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 201, 17 P.S. 211.201(2) (Supp. 1974).
2.The principal function of such a writ is to prevent an inferior judicial tribunal from assuming jurisdiction it does not possess (see Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 61 A.2d 426 (1948)), or from taking some action which constitutes an abuse of its jurisdiction (see Schlesinger Petition, 367 Pa. 476, 81 A.2d 316 (1951)
PARTIES
3.Don Bailey (hereafter referred to as Atty. Bailey) is an Attorney from Dauphin County Pennsylvania. (Reg. No. 23786). He is former Auditor General of Pennsylvania, and a former U.S Congressman. Mr. Bailey is the subject of a Disciplinary proceeding, before the Disciplinary Hearing Board members captioned above. (Docket No. 11 DB 2011). He is accused of making a claim that “Federal Judges are misbehaving” in an appeal where he was the pro se defendant. He has also has been charged with writing a writ of certiorari to the United States Supreme Court on behalf of a client. There is no allegation that anything is improper with the writ, and through the course of the proceedings it was established that Mr. Bailey did not write the writ, had never read it, and was not involved with it in any capacity. Disciplinary Counsel Robert Fulton admitted during a hearing that Mr. Bailey had not authored the writ. The charge remains.
4.Respondents 1 through 3 are Hearing Committee Members (hereafter referred to as Hearing Committee) assigned to hold hearings and file a report and recommendation to the Disciplinary Board for the Supreme Court of Pennsylvania limited to the allegations against the Petitioner. All three are attorneys. All three are not judges.
- Brian Cali is assigned as Chairman.
- Thomas Casale is a Hearing Committee Member
- Joseph D. Burke is a Hearing Committee Member
5.Respondent 4, Marcee Sloan is Assistant Secretary to Elaine Bixler, Secretary of the Board.
6.The Hearing Committee is an inferior judicial tribunal by definition, which holds no jurisdiction over members of the general public, and exceptionally limited jurisdiction over Attorneys.
7.The Hearing Committee (and Disciplinary Board of the Supreme Court) is a State Agency of the Commonwealth of Pennsylvania charged with the task of licensing and regulating Attorneys in Pennsylvania.
8.The Hearing Committee Members are Government Attorneys as they perform the functions in this matter.
9.The Hearing Committee’s sole function is for the purpose of conducting discovery for the Disciplinary Board of the Supreme Court of Pennsylvania, the Supreme Court itself and creating a complete and accurate record. (see §89.173 of Disciplinary Board Rules) The record created by the Hearing Committee is used by both the Disciplinary Board and the Supreme Court of Pennsylvania in a Disciplinary proceeding.(see §89.206 of Disciplinary Board Rules)
10.The Hearing Committee’s Report and Recommendation carries no legal authority before the Disciplinary Board of Pennsylvania or the Supreme Court, but the record they create is used by all three.
SEPARATE AND DISTINCTJURISDICTIONS OF
HEARING COMMITTEE MEMBERS
AND DISCIPLINARY BOARD MEMBERS
11.Jurisdiction for the Disciplinary Board is codified at §85.3 of Disciplinary Board Rules. (Seealso Rule 201 of Disciplinary Enforcement). It is separate and distinct from that of the Hearing Committee.
12.Jurisdiction for the Hearing Committee is very limited and is codified at §89.65through §89.95 of the Disciplinary Board Rules (see also Rule 206 of Disciplinary Enforcement); also at Rule 208(c) of Disciplinary Enforcement; and Rule 213(d),(e),(f)(g) and (h) of Disciplinary Enforcement.
SPECIFIC JURISIDICTIONAL LIMITS
PLACED ON HEARING COMMITTEE MEMBERS
13.A disciplinary proceeding is quasi-criminal in nature.
14.Rule 213(h) of Disciplinary Enforcement further limits the jurisdiction of Hearing Committee Members in that it prohibits them from using or applying “any rule of the Supreme Court or statute providing for discovery shall not be applicable in a proceeding under these rules…”.
15.They are further limited by the mandate that the “…proceeding shall be governed by these rules alone”(see Rule 213(h))
16.The Hearing Committee lacks jurisdiction to issue subpoenas for hearings. They are issued through the Clerk’s Office of the Supreme Court of Pennsylvania. (See Rule 213(b) of Disciplinary Enforcement)
17.The hearing Committee lacks the jurisdiction to enforce any subpoena. (see Rule 213 (g) of Disciplinary Enforcement), it is done through the Supreme Court.
18.The Hearing Committee lacks the authority to quash a subpoena sua sponte.
19.The Hearing Committee may not assume jurisdiction to quash a subpoena, until after a motion to quash is filed by an individual who has been subpoenaed, and they must schedule and hold a hearing within a limited time. (see §91.3(b)(3) of Disciplinary Board Rules):
§91.3; Determination of Validity of Subpoena
(b)Procedure
(3)The Office of Secretary must transmit the motion and answer to the person designated to hear the motion, who must schedule a hearing within ten days after the date by which the answer must be filed. A report with findings of fact and conclusions of law must be filed with the office of secretary within ten days after the conclusion of the hearing.
RELEVANT FACTS
20.Beginning June 10 of 2011, through the week of August 31, 2012, Hearing Chairperson Brian Cali was served with Motions to quash subpoenas.
21.The Hearing Committee is quashing subpoenas without allowing Don Bailey the five (5) days to respond.
22.The hearing Committee lacks jurisdiction to quash a subpoena until after a response is filed and after a hearing is held (see (see also paragraph 19) “The Office of Secretary must transmit the motion and answer to the person designated to hear the motion, who must schedule a hearing within ten days after the date by which the answer must be filed”
23.The hearing committee is refusing to schedule and hold the required hearings.
24.The Hearing Committee is mandated that in addition to scheduling and holding the hearing they must file conclusions of law and findings of facts in support of any Order to quash a subpoena within ten (10) days of the hearing. (see §91.3(b)(3) of Disciplinary Board Rules) ( see also paragraph 19): “A report with findings of fact and conclusions of law must be filed with the office of secretary within ten days after the conclusion of the hearing.”
25.The Hearing Committee is refusing to file the required Findings of Facts and Conclusions of Law.
- “Simply, for an agency to rely on facts withheld from the record is a denial of due process. Ohio Bell Telephone Co. v. Public Utilities Commission,870*870 301 U.S. 292, 302-03, 57 S.Ct. 724, 81 L.Ed. 1093 (1937)”
26.Chairman Brian Cali is quashing subpoenas where no motion to quash is even filed. (see Subpoena of Eckert-Seamans, filed June 5, 2011)
27.There is no appeal or remedy available.None of the ordinary remedies provided by law is applicable or adequate to afford relief.
28.Non-existent Findings of Facts and Conclusions of Law cannot be appealed.
29.Failure to follow the Rules of Procedure is a denial of due process:
Kyu Son Yi v. STATE BD. OF VET. MEDICINE, 960 A. 2d 864 - Pa: Commonwealth Court 2008
The United States Supreme Court is the source of the fundamentals of administrative practice and procedure, and one of the first precepts it established is that administrative officers acting in a quasi-judicial capacity may not "act on their own information, as could jurors in primitive days." Interstate Commerce Commission v. Louisville & Nashville Railroad Co., 227 U.S. 88, 93, 33 S.Ct. 185, 57 L.Ed. 431 (1913).[6] An agency that uses its specialized knowledge as a substitute for evidence will not have its order sustained. Baltimore & Ohio Railroad Co. v. United States, 264 U.S. 258, 263, 44 S.Ct. 317, 68 L.Ed. 667 (1924). Simply, for an agency to rely on facts withheld from the record is a denial of due process. Ohio Bell Telephone Co. v. Public Utilities Commission,870*870 301 U.S. 292, 302-03, 57 S.Ct. 724, 81 L.Ed. 1093 (1937) (explaining that due process requires that the party against whom evidence is presented must "see the evidence or hear it [or be able to] parry its effect ... and challenge the deductions made from them."). Information known personally to administrative officers must be disclosed and put on the record
so that the supposed fact may be supplemented, explained, or refuted by contrary evidence, and so that a court, on judicial review, may be informed of what facts the agency has utilized, so as to determine the existence of evidence in support of the decision.
30.The holding of a hearing prior to quashing a subpoena is not discretionary, it is mandatory.
31.The Filing of Findings of Fact and Conclusions of law is not discretionary, it is mandatory.
32.There is no other remedy available.
33.On August 31, 2012, after Petitioner Don Bailey did not hear from Marcee Sloan, as ordered by Chairman Cali, she was contacted and stated she was refusing Cali’s Order to her to produce the transcript for Petitioner to pick up. (see Exhibit “A”) Sloan’s obligation is not discretionary; there is no right of appeal.
34.Petitioner Don Bailey is being denied access to transcripts of hearings by held by Sloan.
REQUESTED RELIEF
35.By quashing subpoenas before a hearing is held and refusing to file the required Conclusions, the Hearing Committee is taking an action that constitutes and abuse of its jurisdiction (see Paragraph 1), and a Writ of Prohibition is the only available and appropriate relief. Petitioner request a writ of Prohibition be entered against the Hearing Committee Members Brian Cali, Thomas Casale, and Joseph D. Burke.
36.The Hearing Committee Members are assuming jurisdiction to quash subpoenas when no motion has been filed in violation of the relative rules, and no jurisdiction exist.
37.The Hearing Committee Members are assuming jurisdiction to quash subpoenas without holding hearings, in violation of the rules requiring a timely hearing, conclusions of law and findings of fact.
38.In addition to the foregoing, and under reservation of all rights in connection with the issues raised in respondent's motion to strike the entire transcript, respondent notes that the Secretary of the Board has been ordered, by Mr. Cali's June 24, 2012 Order, to produce a copy of the "transcript," presumably the one that the ODC has, to the respondent. Both before and since June 24, 2012, respondent has requested a copy of this transcript on numerous occasions, but his requests, as late as the date of this filing, have been refused. The Secretary has a mandatory duty to provide the transcript as directed, and respondent is being continually and severely prejudiced by the Secretary not doing her mandatory duty."
WHEREFORE, a Writ of Prohibition is the only available and appropriate relief against the Hearing Committees assumption of Jurisdiction where they hold none. Petitioner request a Writ of Prohibition be entered against the Hearing Committee Members Brian Cali, Thomas Casale, and Joseph D. Burke prohibiting them from quashing any subpoena, and prohibiting them from closing any proceeding until such time as they have scheduled and held the required hearings under the relative rules, which will grant them jurisdiction to quash a subpoena at that time. Petitioner further requests that a Mandamus be issued against the Hearing Committee Members Ordering them to file the required Findings of Facts and Conclusions of Law, and a Mandamus be entered against Marcee Sloan order her to comply with the June 24, 2012 order and provide the Petitioner with a copy of the required transcript.
Respectfully Submitted,
Don Bailey, Esquire
Attorney ID 23786
4311 N. Sixth Street
Harrisburg, PA 17110
(717) 221-9400
(717) 221-9400 Fax
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