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Case: 18-1017 Document: 00117294448 Page: 1 Date Filed: 05/29/2018 Entry ID: 6172856

No: 18-1017

In the

First Circuit Court of Appeals


______________________________
Bharanidharan Padmanabhan MD PhD
(Dr Bharani) et al, Appellants
v.
James Paikos et al, Appellees
_____________________________________
On Appeal from U.S. District Court for the
District of Massachusetts
U.S. DISTRICT JUDGE: NATHANIEL M. GORTON
Lower court case no: 1:17-CV-10936
____________________________________
EMERGENCY MOTION TO DISQUALIFY
THE ATTORNEY GENERAL

FUNDAMENTAL AMERICAN PRINCIPLES

In 1908 the United States Supreme Court issued its landmark ruling in Ex

Parte Young, 209 U.S. 123 (1908). The Court beautifully explained that the

sovereign in a constitutional republic are the people of the republic, meaning the

people of the States that make up the United States.

The Court then made explicit that the people of the States are not implicated

when some State official that they employ and fund, the people’s servant, violates

the principles of the supreme authority, the United States Constitution. STATE =

THE PEOPLE = SOVEREIGN ≠ EMPLOYEES WHO VIOLATE THE LAW

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“The attempt of a State officer to enforce an unconstitutional statute is a


proceeding without authority of, and does not affect, the State in its
sovereign or governmental capacity, and is an illegal act, and the officer is
stripped of his official character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart to
its officer immunity from responsibility to the supreme authority of the
United States.” Ex Parte Young, 209 U.S. 123, 124 (1908)

“Thus, implementation of state policy or custom may be reached in federal


court only because official-capacity actions for prospective relief are not
treated as actions against the State. See Ex parte Young, 209 U. S. 123
(1908)” Emphasis added.
Kentucky v. Graham, 473 U.S. 159, Fn.14 (1985)

The employee’s official title means nothing after she violates the Constitution. It is

the people who remain supreme. Ex Parte Young was an early attempt by the

Supreme Court to aid individual efforts to drain the swamp and vindicate federal

rights. The only ones who object are lawyers who support unconstitutional acts and

corruption and desire that perpetrators must escape the consequences of their

individual conduct. Such lawyers openly denigrate the above fundamental

principle by slandering it as a “legal fiction,” meaning the sovereign is separate

from the people who employ State officials, meaning it is not the people who are

the sovereign in this republic. Naturally, their assertion is false.

After the Bicentennial celebrations in 1976, Massachusetts was eventually

shamed into tempering its innate statist proclivities and adopted this fundamental

American principle through the Massachusetts Tort Claims Act. The Supreme

Judicial Court rejoiced when the Legislature finally enacted, fully 200 years after

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independence from the Britannic Majesty’s Kingdom, the abrogation of sovereign

immunity for State officials who violate the Constitution:

“In 1978, in response to several entreaties by this court, see Whitney v.


Worcester, supra, the Legislature enacted the Massachusetts Tort Claims
Act. St. 1978, c. 512, Section 15. The Act abolished the absolute immunity
that governmental units had enjoyed previously.”
Jean W v. Commonwealth, 414 Mass. 496 (1993)

This statute finally made explicit that even in Massachusetts, a State officer,

meaning the people’s servant that they employ and fund, who commits intentional

torts against the people of the State, is stripped of any sovereign immunity, may

not be indemnified by the Commonwealth, and is subject to suit in her person.

MGL ch. 258 § 10 (c), explicitly codified a clear BAN on the Attorney General

representing, at the expense of the people (the true sovereign), such State officials.

“Section 10. The provisions of sections one to eight, inclusive, shall not
apply to: (c) any claim arising out of an intentional tort, including assault,
battery, false imprisonment, false arrest, intentional mental distress,
malicious prosecution, malicious abuse of process, libel, slander,
misrepresentation, deceit, invasion of privacy, interference with
advantageous relations or interference with contractual relations;”

This BAN has been tendered due respect by the state Supreme Court. South Boston

Betterment Trust Corp. v. Boston Redevelopment Auth., 438 Mass. 57, 69 (2002),

Anzalone v. Admin. Off. of the Trial Court, 457 Mass. 647 (2010), Lafayette Place

Assoc. v. Boston Redev. Auth., 427 Mass. 509 (1998), Doe v. Town of Blandford,

402 Mass. 831 (1988), and Afrasiabia v. Awad, 14-10239-PBS (D. Mass. 2015)

Thanks to staunch supporters of corruption, public indemnification has

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become the true last refuge of the scoundrel in Massachusetts. The flag no longer

represents the people or the Constitution that they cherish, it now represents the

Attorney General providing, at the expense of the tax payer, full legal services for

corrupt State officials who consciously violated the Constitution and the Hobbs

Act but now don’t even have to pay for defending themselves in court, even though

“the officer is stripped of his official character and is subjected in his person to the

consequences of his individual conduct” and the “State has no power to impart

to its officer immunity from responsibility to the supreme authority of the

United States.”

Since 1908 the Court has repeatedly explained the fundamental point that

State officers sued in court under Ex Parte Young do not represent the State

(people), and suits against them under Ex Parte Young are not suits against the

State (people).

As a matter of law, it is illegal for the Massachusetts Attorney General to

indemnify and defend, at the expense of the sovereign people, State officers sued

in their person under Ex Parte Young for violations of the Constitution and the

Hobbs Act.

This court must immediately order that representation by the Massachusetts

Attorney General is ultra vires and require these State officers - James Paikos,

Robert Harvey, Debra Stoller, Loretta Cooke, George Zachos, Susan Giordano -

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stripped as they are of their official status and subjected in their person to the

consequences of their individual conduct, to immediately provide to this court

sworn documents attesting that, by money order made out to the Treasury of the

Commonwealth, they have repaid the people the monies illegally withdrawn from

the Treasury thus far for their defense.

HALF OF THE DEFENDANT-APPELLEES ARE NOT STATE OFFICERS

Appellees Michael Henry, Robin Richman, Brent “Woody” Giessmann,

George Abraham and Candace Lapidus Sloane are independent market actors who

control an independent licensing board.

In 2015 the United States Supreme Court stripped all such market actors of

sovereign immunity. North Carolina State Board of Dental Examiners v. Federal

Trade Commission, 574 U.S. ___ (2015)

The Court also defined the “active supervision” of licensing boards that it

required a State to implement before these market actors could be indemnified and

covered by sovereign immunity. Only then could the licensing board itself be

considered an arm of the State.

In response, Massachusetts Governor Charles Baker floated a bill to

ostensibly provide “active supervision” over the medical board. In his April 8,

2016 letter, Gov. Baker acknowledged that in the absence of his proposed Act, the

“current statutory scheme governing the Commonwealth’s many independent

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licensing boards does not provide for the degree of supervision required by

the Supreme Court[]” and that “[i]t would also leave individual practitioners

who serve as unpaid members on these boards subject to personal legal

liability under the antitrust laws.” The Legislature refused to pass that bill to

indemnify these appellees. Indemnification was expressly, explicitly denied by the

appropriating authority. Expending public money on these appellees is as

unconstitutional as expending public money on a church’s stained glass window.

See http://www.mass.gov/governor/legislationexecorder/legislation/state-oversight-of-

professional-licensing-boards.html, Caplan v. Acton, 479 Mass. 69 (2018)

The Massachusetts Governor has officially declared that the market actors in

control of the independent licensing board, here Appellees Michael Henry, Robin

Richman, Brent “Woody” Giessmann, George Abraham and Candace Lapidus

Sloane, have no immunity, may not be indemnified by the Commonwealth, and

are personally liable for their legal expenses.

As a matter of law, the independent licensing board, totally lacking the

“active supervision” defined by the Court, itself is not an arm of the State and thus

the Commonwealth of Massachusetts is NOT a party in interest in this suit.

As a matter of law, it is illegal and unconstitutional for the Attorney General,

the ‘People’s Lawyer,’ to indemnify independent private market actors and defend

them using public tax dollars in this suit brought against their persons in response

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to their violation of the Constitution and the Hobbs Act. This kleptocratic practice

is called crony capitalism, a term coined in 1980 by George Taber for TIME

magazine. This is Massachusetts. Nothing better may be expected.

By law, these independent market actors must be responsible for their own

ongoing legal expenses and must not be illegally fed from the public trough.

This Federal court must immediately order that representation of these

independent appellees by the Attorney General in Federal court is ultra vires and

require these independent market actors to immediately provide to this court sworn

documents attesting that they have repaid the people, by money order made out to

the Treasury of the Commonwealth, the monies illegally withdrawn from the

Treasury thus far for their legal defense.

CONCLUSION

No court has the authority to waive or overrule the Supreme Court’s ruling

in Ex Parte Young or the clear dictate of a state law that defines the state’s

sovereign immunity doctrine and what the tax payer is not on the hook for.

Granting this motion is required by the Constitution’s guarantee of equal

protection. Appellant Dr Bharani is immeasurably prejudiced every single day by

the Appellees having been indemnified in conscious violation of federal rulings,

state law, US and state constitutions, the will of the elected Legislature, as well as

by the Attorney General’s ongoing deliberately-unethical dilatory practices.

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PRAYER FOR RELIEF

As a matter of law, this court must immediately grant the relief sought:

1. This court must immediately order that representation by the

Massachusetts Attorney General is ultra vires and require these State

officers, stripped of their official status and subjected in their person to the

consequences of their individual conduct, to immediately provide to this

court sworn documents attesting that they have repaid the people, by money

order made out to the Treasury of the Commonwealth, the monies illegally

withdrawn from the Treasury thus far for their defense.

2. This Federal court must immediately order that representation of the

independent appellees by the Attorney General is ultra vires and an illegal

kleptocratic diversion of tax dollars, and require these independent market

actors to immediately provide to this court sworn documents attesting that

they have repaid the people, by money order made out to the Treasury of the

Commonwealth, the monies illegally withdrawn from the Treasury thus far

for their legal defense.

Respectfully submitted, under the pains and penalties of perjury,


/s/ Bharani Padmanabhan MD PhD
__________________________________
Bharani Padmanabhan MD PhD, pro se
30 Gardner Road #6A, Brookline MA 02445
29 May 2018 Tel+fax 617 5666047
scleroplex@gmail.com

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CERTIFICATE OF SERVICE
Dr Bharani certifies that a copy of this electronic brief has been served today
upon the defendants in case 18-1017 (DC 1:17-cv-10936) (via the Massachusetts
Attorney General) via the ECF system.

Signed under the pains and penalties of perjury,


/s/ Bharani Padmanabhan MD PhD
__________________________________
Bharani Padmanabhan MD PhD, pro se
30 Gardner Road #6A, Brookline MA 02445
29 May 2018 Tel+fax 617 5666047
scleroplex@gmail.com

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