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I will be in State Supreme Court tomorrow (Thursday, Sept. 11), 92 Franklin St. Buffalo, NY, Erie County Hall, 3rd Floor, Justice James Dillon, at 9:30am, seeking an order barring Justice Andrew Fleming from ordering my client Scott Zawierucha to remove a sign from his fence which states "NY IS NOT S.A.F.E.!! STOP CUOMO--PRESERVE YOUR RIGHTS". Court proceedings are still open to the public so exercise your rights while you still can. Please come and support the brave Patriot Scott Zawierucha.

Here is the petition with the gory details:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE

________________________________________________________________

SCOTT ZAWIERUCHA,

Petitioner, Index No.2014-156

-against-

VERIFIED PETITION



Andrew Fleming, in his capacity as

Justice of the Hamburg Village Court,

Respondent.

_________________________________________________________________

The Petitioner SCOTT ZAWIERUCHA, by his attorney, JAMES OSTROWSKI, for his verified petition, alleges as follows:

1. This is a special proceeding pursuant to Article 78 of the CPLR for a writ of prohibition barring the respondent from ordering SCOTT ZAWIERUCHA to take one or more signs off the fence on the rear of his property in Hamburg, New York.

2. Petitioner SCOTT ZAWIERUCHA resides at 5096 Clarice Dr., Hamburg, New York, 14075.

3. Respondent ANDREW FLEMING is a Hamburg Village Court Justice with offices at 100 Main St., Hamburg, New York, 14075.

4. Petitioner is the defendant in a criminal case entitled, The People of the State of New York v. Scott Zawierucha, currently venued in the Hamburg Village Court and assigned to Justice Fleming.

5. In the criminal action, defendant is charged with violating Hamburg Town ordinance 280-277(D)(3) for not removing a sign on his fence on February 4, 2014. See the information attached hereto as Exhibit "A".

6. On that date, the defendant had three political signs on his fence.

7. One large sign stated: "NY IS NOT S.A.F.E!! STOP CUOMO PRESERVE YOUR RIGHTS!!"

8. Two identical smaller signs stated: "REPEAL THE S.A.F.E. ACT DEFEND YOUR RIGHTS, SCOPENY.ORG."

9. The sign also contained the logo of the Shooters Committee on Political Education (S.C.O.P.E.), a pro-Second Amendment group.

10. The S.A.F.E. Act is a controversial gun control law enacted in 2013.

11. There is no question that the three signs constitute political speech protected by the First Amendment.

12. The ordinance states: "Additional fencing requirements are as follows: . . . (3) No images or language shall be painted, affixed to the outward side of any fence or directed at neighboring properties for any reason."

13. The defendant moved to dismiss the charge on First Amendment and other grounds on April 21, 2014. See his motion papers at Exhibit "B".

14. The Village Prosecutor, Brian F. Attea, Esq, responded with an affirmation dated, July 1, 2014. See Exhibit "C".

15. The prosecutor did not ask the Court to order the petitioner herein to remove the signs.

16. The petitioner filed reply papers as indicated in Exhibit "D".

17. Respondent issued a "decision and order" on September 4, 2014, denying the motion in a summary manner. See Exhibit "E."

18. Respondent also issued the following order, sua sponte:

"ORDERED that Defendant shall take the subject sign down off of his fence by 1:00 p.m. on September 12, 2014."

19. Said order was issued sua sponte, without prior notice or an opportunity to be heard, and was issued without any lawful authority, statutory or otherwise, and was issued wholly without lawful jurisdiction of any kind, statutory or otherwise.

20. On September 8, 2014, petitioner's counsel wrote to the Court requesting that order be rescinded. See Exhibit "F".

21. The Court denied the request the same day. See, Exhibit "G".

22. As no direct appeal is available in these circumstances, all administrative remedies have been exhausted.

FIRST CAUSE OF ACTION

23. Respondent, acting in a judicial capacity and sua sponte, is proceeding or is about to proceed without or in excess of jurisdiction. Matter of Holtzman v. Goldman, 71 NY2d 564 (1988).

24. A sua sponte order which grants unauthorized relief to one party over another is suggestive of judicial bias and thus threatens the impartiality of the court.[1]

25. There is no authority in the Criminal Procedure Law or Penal Law or Justice Court Act or other statute, for the court, in resolving a motion to dismiss an information on constitutional and other grounds, to order the defendant to remove a sign from his fence.

26. The Respondent's sole prerogative was to "determine the motion." N.Y. CPL. LAW § 255.20.

27. Respondent's order was issued without the essential elements of due process: prior notice, an opportunity to be heard and lawful jurisdiction.[2]

28. For the reasons stated in petitioner's motions papers attached hereto as Exhibit "B" and "D", respondent's order directly violates petitioner' right to free speech under the state and federal constitutions.

29. Specifically, the order:

a. deprives petitioner of the right to post political signs on his private property (See, Ladue v. Gilleo, 512 U. S. 43 (1994));

b. rests upon an ordinance that is not content-neutral;

c. forecloses an important means of communications without leaving equivalent alternative channels of communication; and

d. has been and is being selectively enforced.

30. Petitioner has no other viable remedy other than a writ of prohibition as there is no interlocutory direct appeal available in this instance and he would be irreparably harmed by the denial of his rights to free speech and due process for many months until a direct appeal can be had since judges are generally immune from suit for money damages when they act in a judicial capacity.

31. Petitioner has a clear legal right to the relief requested herein.

32. Granting this relief will not interfere in the slightest with the prosecution of the petitioner in the criminal proceeding.

33. It is imperative that respondent's order, implicating all four of the fundamental precepts of due process―impartial tribunal, notice, opportunity to be heard, and jurisdiction―be enjoined, lest petitioner's rights be destroyed and the public's essential confidence in the criminal justice system, be seriously eroded.

Wherefore, we respectfully request that the Court;

1. grant the relief requested in the attached order to show cause;

2. order the respondent to vacate that portion of his order of September 4th that directs the petitioner to remove a sign from his fence; and

3. grant such other and further relief as the Court deems proper.

Dated: Buffalo, New York

September 9, 2014 _____________________________

JAMES OSTROWSKI

Attorney for Petitioner

SCOTT ZAWIERUCHA

63 Newport Ave.

Buffalo, New York 14216

(716) 435-8918

[email protected]


VERIFICATION

STATE OF NEW YORK )

) ss.:

COUNTY OF ERIE )

SCOTT ZAWIERUCHA, being duly sworn, deposes and says that he is petitioner in the within proceeding; that deponent has read the foregoing petition and knows the contents thereof; that the same is true to his own knowledge, except as to those matters therein stated to be alleged upon information and belief and that, as to those matters, he believes them to be true.



____________________________________

SCOTT ZAWIERUCHA

Subscribed and sworn to before

me this 9th day of September, 2014

_____________________________

JAMES OSTROWSKI

Notary Public

Qualified in Erie County

My Commission Expires 7/5/15




[1] See, Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447, 502 (2009) ("The fear is that judges will be unable to remain impartial when deciding legal questions that they themselves have inserted into the litigation. Furthermore, the appearance of justice might suffer because the litigants and the general public might conclude that the judge is now a partisan player in the litigation rather than a detached observer to the dispute.").


[2] In Re Gault, 387 U.S. 1, 18, n. 25 (1967); Gideon v. Wainwright, 372 U.S. 335, 343 (1963).
 

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I would be surprised you have any problems fixing this.
In similar cases 1st amendment law has been very consistent about this.
Good luck.
 

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Go Get em Jimmy! I suppose all the Buffalo Bills and Buffalo Sabers signs need to go too
 

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Good luck to you and please let us know what happens. I'll be looking for a update all day tomorrow
 

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Good luck. Please keep us informed.
 

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Best of luck. Should be a layup. If for some reason this does not go the way it should every major news outlet should get a call that NY is restricting the FirstAmendment right of Free Speech. Let the rest of the country see how corrupt NY truly is.
 

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Good luck!!!! Seems like this whole thing is a waste of time. Sign should not have been removed in the first place. Hopefully you guys are suing whomever made him take it down
 

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good luck Jim!
 

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Several years back a young confused male held a sign everyday on the traffic circle in Glens Falls. The sign read, F*** Bush. He was arrested for disorderly conduct IIRC. The judge ruled he had a 1st Amendment right to do so and back he went with his sign.
 

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The artist formerly known as jhm8071
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Good luck!
 

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I hope justice will prevail, Arlington is full of souls who gave their all for our constitution and the 1A.

Sadly, I believe the system is so broken and corrupt that the rule of law does not apply to the average citizen, special interests and power brokers now control the verdicts.
 
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