# Petition for Writ of Certiorari — Levin v. Parrillo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0053%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 893 ## Text 88-8 66 JUL 12 IH Tr. NO. ‘ IN THE Supreme Court of the United States OCTOBER TERM, 1988 Howard S. Levin and Sydell R. Kraft Petitioners, vs. Anthony J. Parrillo and R. Lane Stebbins Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT HOWARD S. LEVIN Pro Se SYDELL R. KRAFT Pro Se 224 E. 49th Street New York, NY 10017 212°935°9620 QUESTIONS PRESENTED FOR REVIEW i. Whether persons engaged in gaming activities subject to New Jersey's Casino Control Act are entitled to the protec- tion of due process of law. 2. Whether a constitutionally protec- ted liberty interest requires the State of New Jersey to afford due process of law before prohibiting business trans- actions which had been expressly per- mitted by administrative action over a several year period. 3. Whether a constitutionally protec- ted property right develops from contin- ued adherence to statutory provisions of New Jersey's Casino Control Act and re- peated administrative approval of busi- ness transactions over an extended period of time. 4. Whether the Burford abstention doctrine applies to a claim for redress under 42 U.S.C. § 1983. (Burford v. Sun Oil Co. 319 U.S. 315 (1943)). 5. Whether the Pullman abstention doctrine applies to a claim for redress under 42 U.S.C. § 1983. (Railroad Commission of Texas v. Pullman Co. 312 U.S. 496 (1941)). PARTIES The parties to this appeal are Howard S. Levin and Sydell R. Kraft who appear pro se. Trans Atlantic Games, Inc. and W. Cary Edwards in his official capacity as Attorney General of New Jersey were parties to the proceedings in the lower courts. ii Questio Parties Table o TABLE OF CONTENTS ns Presented For Review ..... fg 8” PP ere Le ee Gpinieme BOLO sesccccctscessssesves Jurisdi Statute Stateme Reasons I. Il. IIt. SELON ccccccccccsesccesececes INVOlVed ..cccccccccccecs ecee nt of the Case ...cccccccccece for Granting the Writ ...... The Court of Appeals was in error by affirming the District Court finding that petitioners lacked a con- stitutionally protected liberty interest ........... The Court of Appeals was in error by affirming the District Court finding that petitioners lacked a con- stitutionally protected property interest .......... The Court of Appeals was in error by affirming the application of the Burford abstention doctrine. (Bur- ford v. Sun Oi] Co. 319 U.S. 315 (1943)). e*eeeteeeeneeeeees iii 13 18 23 Table of Contents, continued PAGE IV. The Court of Appeals was in error by affirming the ap- plication of the Pullman abstention doctrine. Texas v. Pullman Co. 312 Fe ££. (Er 24 Vv. The Court of Appeals was in error by affirming the District Court dismissal of claims entitled to trial Gm GROLE MOPACS ccccccccccecs 26 GO. 64656066 06606660668666868 29 APPENDIX: A. Judgment order of the United States Court of Appeals (March 3, 1988) .ccccccccceces A-1 B. Denial of Petition for Rehear- ing in banc by the United States Court of Appeals i i ew eneee A-3 C. Oral Opinion of the United States District Court (June 12, 1987) ccccccccccceccs A-5 Appendix, Continued PAGE D. Opinion of the United States District Court (July 27, 1987) eoeeeeeveee oeeeeeeeer awe a A-28 E. Order for Summary Judgment of the United States District Court (July 27, 1987) ..... eee A-50 F. 42 U.S.C. §1983 wee eceeeeece . A-52 G. NeJ-Se-Ap 5212-92 2c eee eeeeee eo A-53 TABLE OF AUTHORITIES Cases Cited Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 ere @# enereneeetee 16 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) ........- 14,15, 21 Bolling v. Sharpe, 347 U.S. 497, DT Se 7s ced we ddensvekese due 15 Table of Authorities, continued PAGE Burford v. Sun Oj] Co., Oo Ss a ar > D'Iorio v. County of Delaware, 592 F.2d, 681, 686 oe SS er er or 24,25 26 Duva v. World Boxing Association, 548 F.Supp. 710 (D.N.J. 1982) ... 22 Kentucky West Virginia Gas Co. v. ; ‘a Public Utili! Commission, 791 F.2d 1111, 1115 (3d Cir. 1986) 2.628 6 @2e 828 68° 82 8 2 6 24. 8.¢ 23 Meyer v. Nebraska, 262 U.S. 390, 399 eoeoeveeeeee ee eee erereeeeee eee eeee 15 Paul _v. Davis, Re es ee PROPER) ccicnccntcess $6,237 Railroad Commission of Texas v. Pullman Co., Dee eee Se TEOEES. ccccicciccsces BA, Stanley v. Illinois, 405 U.S. 645 . 15 vi Table of Authorities, continued PAGE State ex rel. Grimes et al. vs. ione fe) it of Las Vegas et al., 53 Nev. 364, 372, 373, 1 P.2d 570, a ask tcc cece 10 State vs. Rosenthal, CNet tees 11 Wi inv. ¢ u, I 16 Statutes Cited 42 WebcSe § 1983 eeeseeeees#se#sse#e#ee#e#8eee 3 Nw.JeS.A. 5512-92 ..... een ceccecce 4,19 vii NO. IN THE Supreme Court of the United States OCTOBER TERM, i988 Howard S. Levin and Sydell R. Kraft Petitioners, vs. Anthony J. Parrillo and R. Lane Stebbins Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT OPINION BELOW The Court of Appeals affirmed without written opinion the order of the Dis- trict Court granting summary judgment in favor of the respondents. (Appendix A). A petition for rehearing was denied on April 14, 1988 (Appendix B). The decision of the United States Dis- trict Court is unreported. The trans- cript of an oral opinion of the District Court is set forth at Appendix Cc. The written opinion of the District Court granting summary judgment dismissing claims of the petitioners is set forth at Appendix D. JURISDICTION The judgment of the Court of Appeals (Appendix A) was entered on March 3, 1988. A timely petition for rehearing was filed on March 16, 1988 and was denied on April 14, 1988 (Appendix 8B). The jurisdiction of this Court is invoked under 28 U.S.C. §1254 (1). STATUTE INVOLVED This petition involves the interpretation of the following statute: 42 U.S.C. §1983. The statute is set forth in the appendix. STATEMENT OF THE CASE Trans Atlantic Games, Inc. ("TAG") is a New Jersey Corporation formerly engaged in the distribution of slot machines. Petititioners Howard S. Levin ("Levin") and Sydell R. Kraft ("Kraft") are the two principals of TAG. Levin is the pres- ident of TAG. Kraft is the secretary/ treasurer of TAG. TAG filed an application for licensure as a casino service industry with the New Jersey Casino Control Commission ("Commission") in or about June, 1982. 3 The Commission, in accordance with statutory procedures, thereafter referred TAG's application to the New Jersey Division of Gaming Enforcement ("Division") for investigation and report. Before being licensed, an applicant for licensure as a casino service industry may do business with licensed casinos or others by means of a petition to the Commission for a “transactional waiver". (N.J.S.A. 5:12-92 a(2)). In order to obtain a transactional waiver from the Commission, the petition must be supported with a demonstration of “good cause." Jd. Clearly the transactional waiver as a means of doing business prior to licensure is an established policy of New Jersey. Between 1982 and 1986 TAG submitted more than a dozen petitions for transactional waivers on its own behalf to allow TAG to furnish slot machines to Atlantic City casinos. In the same period more than a dozen additional petitions for trans- actional waivers were submitted by licensed Atlantic City casinos to allow TAG to furnish slot machines for casino use. Between 1982 and 1986 the Division rec- ommended approval of twenty-six applica- tions for transactional waivers filed by TAG on its own behalf or filed by Atlantic City casinos on TAG's behalf. After reviewing each of the twenty-six applications the Division recommended approval of the proposed transaction to the Commission. The Division based its recommendation on good cause having been shown by TAG and the seven licensed Atlantic City casinos which were TAG's customers. The Commission approved by unanimous vote all transactional waivers recommended by respondents. On October 14, 1986 respondent Stebbins on behalf of respondent Parrillo sent a letter to the Honorable Walter N. Read, Chairman of the Commission objecting for the first time to the licensure of TAG. On November 24, 1986 counsel to TAG noti- fied respondents of substantial omis- sions, inaccuracies and misrepresenta- tions in the material transmitted to the Commission by them on October 14, 1986. TAG's application for licensure had been pending for more than four years. on October 14, 1986 when respondents first objected to TAG's licensure. No hearing 6 had been set by the Commission for deter- mination of TAG's fitness for licensure. Pending the scheduling of the hearing TAG continued its normal business operations and solicited orders from its casino cus- tomers. TAG and the petitioners antic- ipated the continued approval of trans- actional waivers until such a time as they were allowed the opportunity to de- fend themselves against the charges made by the respondents. On January 28, 1987 Boardwalk Regency Corporation ("BRC") a licensed Atlantic City casino sought a transactional waiver from the Commission for the purchase from TAG of four blackjack machines and four slot machines. Additionally, on February 5, 1987 BRC sought a transactional waiver from the Commission for purchase from TAG of twenty-five slot machines. 7 On March 5, 1987 respondents Parrillo and Stebbins notified the Commission of the Division's opposition to the application of BRC dated January 28, 1987 for a transactional waiver. Respondents Par- rillo and Stebbins in a separate response dated March 5, 1987 stated opposition to the application for a transactional waiver dated February 5, 1987. The op- position of the respondents was despite the fact that TAG's qualifications for licensure as a gaming related casino ser- vice industry were not yet even scheduled to be heard by the Commission. Under date of March 20, 1987, TAG and the petitioners requested the opportunity to review certain documents in order to sup- port the requested transactional waivers. Respondent Stebbins in a letter dated March 31, 1987 denied the document re- ae ar ee eit E ID "64 quest and refused any discovery. During the period that rights of petit- ioners to discovery were in dispute the Commission administratively dismissed the transactional waivers sought by BRC to purchase blackjack and slot machines from TAG. TAG abandoned its slot machine busi- ness at substantial loss after respond- ents' objections caused BRC and others to refuse to do business with TAG. REASONS FOR GRANTING THE WRIT This appeal centers on denial of due process of law. Respondents have as- serted that the petitioners are not en- titled to due process and cannot be heard to complain. The District Court agreed. The District Court found no protectable liberty or property interests entitling petitioners to due process of law. SS 1 ATH AE MHRA YE AIH A The association of gaming with organized crime and with other antisocial behavior has often led to an aversion on the part of courts toward gaming-related matters. Perhaps this state of affairs is best re- flected by a 1931 Nevada case (State ex rel. Grimes et al. vs. Board of Commis- sioners of City of Las Vegas et al., 53 Mev. 2664, 3728, 373; 1 BP.ae S70, S7a (1931)). In 1931 the Nevada court wrote: We think the distinction drawn betwe- en a business of the latter character (liquor) and useful trades, occupa- tions, or businesses is substantial and necessary for the proper exercise of the police power of the state. Gam- ing as a calling or business is in the same class as the selling of intoxic- ating liquors in respect to deleter- ious tendency. The state may regulate or suppress it without interfering with any of those inherent rights of citizenship which it is the object of government to protect and secure. This ancient finding was reaffirmed by the Supreme Court of Nevada in 1977 when considering the licensing of "Lefty" Ro- 10 senthal. (State vs. Rosenthal, 559 P.2d 830). Mr. Rosenthal's background included conviction for conspiracy to bribe an an- ateur athlete, testimony before a United States Senate subcomittee that he atten- pted a bribe to influence the outcome of a college football game, sworn statements by police officers that Mr. Rosenthal corrupted public officials in return for protection and action by the Florida Rac- ing Commission to bar him from racetracks in Florida. Not surprisingly Mr. Rosenthal remained unlicensed and his attempts at judicial reversal were marked with failure. Gaming is now a “useful trade". Gaming has become an important segment of the national economy. Estimates of its gross revenues for 1987* are as follows: *Gaming and Wagering Business Vol. 9 No. 5 May 15, 1988 pages 9, 10, 12 and 13. 11 State lottery gross revenue $12,435,000,000 Thoroughbred handle 8,194,000,000 Nevada casino gross revenue 3,668,000,000 Off-track betting and sports books gross revenues 3,482,000,000 Greyhound handle 3,203,000,000 Atlantic City casino gross revenue 2,822,000,000 Harness handle 2,576,000,000 Jai-alai handle 707,000,000 $37,087,000,000 Gaming activities regulated by the states produced more than 37 billion dollars in gross revenues. Ancillary revenues for food, lodging, transportation and enter- tainment no doubt exceed this figure. The fair regulation of businesses generating these significant revenues is a matter of importance deserving consideration by this Court. 12 It is in the national interest that per- sons engaged in gaming activities be af- forded the same constitutional protection as all other citizens. I. THE COURT OF APPEALS WAS IN ERROR BY AFFIRMING THE DISTRICT COURT FINDING THAT PETITIONERS LACKED A CONSTITU- TIONALLY PROTECTED LIBERTY INTEREST. Over a four year period petitioners en- gaged in the sale of slot machines to Atlantic City casinos. These sales were consumated in 26 separate transactions. Each transaction was specifically autho- rized by the Commission after a favorable recommendation by the respondents. Suddenly the recommendations of respon- dents to further transactions changed from favorable to unfavorable. No hearing was held or even’ scheduled. Discovery into the basis of the un- favorable recommendation was denied to 13 petitioners. The chilling effect of official disapproval resulted in the inability of petitioners to continue their business. Petitioners assert that the pattern of tranactions specifically permitted created a liberty interest. The State could deny further transactions only through due process of law. In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) this Court speaks broadly of liberty. It considers liberty a broad and majestic term - among the great constitutional concepts left to gather meaning from experience. "While this Court has not attempted to define with exactness the liberty ... guaranteed [by the Fourteenth Amend- ment], the term has received much con- sideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to con- tract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home 14 gs EN eae RP and bring up children, to worship God according to the dictates of his own conscience, and generally toc enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men." Meyer v. Ne- braska, 262 U. S. 390, 399. In a Con- stitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U. S. 497, 499-500; Stanley v. Illinois, 405 U. S. 645. id 572 In the Roth case this Court commented upon “good name, reputation, honor, or integrity". Id 573. In the case brought by the petitioners these elements of freedom have indeed been stigmatized. The respondents wrote to the Chairman of the Commission on March 5, 1987 in separate letters the following statement: ...-the Division believes that approval of the instant transaction (the sale of slot machines to BRC) would unavoidably tend to erode the public trust and confidence in the credibility and integrity of the regulatory process and of casino operations. 15 FORE PTE He Om eo : The petitioners were discredited by the respondents without notice, without a hearing and without the opportunity for discovery. In Paul _v. Davis, 424 U.S. 693 (1976), this Court set down the "stigma" standard for deciding whether a state has infring- ed on an individual's liberty. Mere reputation alone does not create a protectable interest; however, when the state not only stigmatizes the individual but acts to interfere with his future business, a constitutional right does become involved. Id. Reviewing its prior decision in Wisconsin v. Constantineau, 400 U.S. 433 (1971) this Court stated: '(Tjhe right to be heard before being condemned to suffer grievous loss of any kind, even though it may not in- volve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Anti-Fascist j » e628: Wels 223 168 (Frankfurter, J., concurring). 16 “Where a person's good name, rep- utation, honor, or integrity is at stake because of what the government is doing to him, notice and an op- portunity to be heard are essential." Id., at 437 (emphasis supplied). 424 U.S. at 708 The Court in commenting on the above quotation stated: We think that the italicized language in the last sentence quoted, "because of what the government is doing to him," referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law - the right to purchase or obtain liquor in common with the rest of the citizenry. "Posting," therefore, significantly altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting from the defama- tion, justified the invocation of procedural safeguards. 424 U.S. at 708 - 709 The holding of this Court in Paul v. Da- vis applies directly to the case at bar. Petitioners' status was altered by re- spondents abrupt change from approval to 17 disapproval. The injury resulting from the change in status was the inability of the petitioners to do further business with their customers. A mark of Cain had been indelibly placed on the foreheads of the petitioners. The liberty interests of the petitioners entitle them to the protection of due process of law. The scorn of state disapproval was visited upon the peti- tioners without the hearing to which they were entitled. Il. THE COURT OF APPEALS WAS IN ERROR BY AFFIRMING THE DISTRICT COURT FINDING THAT PETITIONERS LACKED A CONSTITUTIONALLY PROTECTED PROP- ERTY INTEREST TAG filed for a gaming related casino service industry license in 1982 at which time the petitioners provided full back- ground information. The Division commen- ced an investigation and over a four year 18 period cooperated with TAG and the peti- tioners in their sale of slot machines to Atlantic City casinos. This cooperation was manifest by recommending approval for a series of transactional waivers filed either by TAG or by casinos with whom TAG intended to do business. The basis in the law for transactional waivers is established by N.J.S.A. 5:12-92(a) and obviously enacted to allow persons similarly situated to TAG to do business with New Jersey casinos pending a hearing en their licensing application. Over a four year period TAG sought and obtained transactional waivers. The Division recommended these transactional waivers and the Commission routinely granted the waivers by unanimous vote. The District Court held that neither TAG nor the petitioners had a property inter- 19 est in a request for a transactional waiver filed by TAG's principle customer BRC. The court reasoned that TAG was not a party to the transactional waiver and hence could not have a protectable prop- erty interest. Petitioners contend that the property interest arises from a pat- tern of transactional waivers beneficial to petitioners which took place over a four year period with the support and cooperation of the Division. Petitioners held and were entitled to hold a reasonable expectation that they could continue to furnish slot machines to Atlantic City casinos through compli- ance with procedures established by the Division pending a licensure decision by the Commission. Petitioners' compliance with those procedures as well as the ap- proval obtained by TAG for more than two 20 ow. dozen transactional waivers provided petitioners with a protected property interest. Property rights can clearly be created by existing rules or understandings, Board of Regents v. Roth, 408 U.S. 564 (1972). The Court defined a property interest as follows: To have a property interest in a bene- fit, a person clearly must have more than an abstract need or desire for it. He must have more than a uni- lateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily under- mined. It is a purpose of the con- stitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Id. at 577 Procedures established by state law such as the transactional waiver in the case 21 at bar amount to "entitlements" protected by due process. The same district that dismissed peti- tioners' claims has ruled broadly on the existence of protected property inter- ests. In Duva v. World Boxing Associa- tion 548 F.Supp. 710 (D.N.J. 1982) the District Court found a protectable prop- erty interest was created by procedures established by an association governing contention for boxing championships. Petitioners do not argue that they had an unconditional right to the approval of a transactional waiver or that the Division was bound to mute any objections it had to petitioners doing business. What petitioners do argue is that the trans- actional waiver procedure and the use made of it by petitioners over a four year period entitled them to a reasonable 22 expectation of continuance and the right to due process of law if future trans- actional waivers are to be denied. IItl. THE COURT OF APPEALS WAS IN ERROR BY AFFIRMING THE APPLICATION OF THE BURFORD ABSTENTION DOCTRINE. (BURFORD V. SUN OIL CO. 319 U.S. 315 (1943)). The District Court found the criteria for invoking the doctrine of abstention under Burford v. Sun Oi] Co. 319 U.S. 315 (1943) to be clearly present. The District Court cited Kentucky West Vi ini Vv sylv Utility Commission. 791 F.2d 1111, 1115 (3d Cir. 1986) which held the Burford abstention to be appropriate in two situations: (1) “where there have been presented difficult questions of state law bear- ing on policy problems of substantial public import whose importance tran- scends the result in the case then at bar," and (2) where “the exercise of federal review of the question in a 23 case and in similar cases would be disruptive of state efforts to estab- lish a coherent policy with respect to a matter of substantial public con- cern." Appendix D, page A-25. The claims of the petitioners that two state officials deprived them of consti- tutionally protected rights is in no way disruptive of state regulation. Petition- ers seek to call to account the actions of the respondents and to obtain redress if the allegations of malice and bad faith can be proven by a preponderance of the evidence. IV. THE COURT OF APPEALS WAS IN ERROR BY AFFIRMIMING THE APPLICATION OF THE PULLMAN ABSTENTION DOCTRINE. (RAILROAD COMMISSION OF TEXAS V. PULLMAN CO. 312 U.S. 496 (1941)). The District Court buttresses its posi- tion of abstention by reference to D'Iorio v. County of Delaware, 592, F.2d, 681, 686 (3d Cir. 1978). 24 The District Court found all the elements of D'Iorio to be present and that absten- tion under the doctrine Pullman is mandated. Thus the District Court considered there to be: 1. -++ uncertain issues of state law underlying the federal con- stitutional claims ... 2 ++. State law issues ... amenable to an interpretation by the state courts that would obivate the need for or substantially narrow the scope of the adjudication of the constitutional claims. 3. (possibility that) an erroneous decision of state law by the federal court would be disruptive of important state policies. Appendix D, page A-28. To hold, as the District Court did, that the Pullman abstention applies, is to hold that respondents are not accountable for their deprivation of petitioners' constitutional rights. There are no un- 25 certain issues of state law underlying constitutional Claims brought in the federal court. Petitioners contend they were entitled to due process of law which was not afforded then. State law issues are not before this Court. The assertion of individual rights cannot be considered disruptive of impor- tant state policies. The District Court is wrong in applying D'IJorio to the case at bar. The issue petitioners seek to pursue on its merits is simply whether individuals acting under color of state law abused their positions and deprived petitioners of fundamental rights. Vv. THE COURT OF APPEALS WAS IN ERROR BY AFFIRMING THE DISTRICT COURT DISMISSAL OF CLAIMS ENTITLED TO TRIAL ON THEIR MERITS Petitioners contend the existence of con- 26 stitutionally protected liberty and pro- perty interests. If either of these pro- tected interests exists petitioners are entitled to due process of law. The District Court found no such entitlement and dismissed the claims of the petitioners. Petitioners submit that due process was clearly denied. Respondents sent their objection to further business transac- tions by the petitioners to the Commis- sion and to BRC. Petitioners were not informed of respondents intent to do so. Respondents did not give petitioners any oppertunity to contest the charges again- st them or argue against the objections. Petitioners were condemned but they were never heard. Respondents denied discovery to petition- ers who sought to clear their name. Be- 27 cause of the protracted delay the Commis- sion administratively dismissed the BRC application for transactional waiver. The petitioners were irreparably injured and forced to abandon their business. The respondents issued a recommendation to the Commission and to TAG's principle customer BRC which destroyed petitioners' ability to conduct business within New Jersey. TAG's Atlantic City customers including BRC subsequently refused to seek appproval for transactional waivers as they have done in the past to purchase slot machines from TAG. Petitioners assert that respondents' ac- tions were malicious and in bad faith. Petitioners seek a trial on the merits of their claims. 28 CONCLUSION The Court should review this case because of the public importance of fairness to individuals and investors of regulation of gaming activities by state officials. Gaming activities in Atlantic City and Nevada and the revenue produced by state lotteries and pari-mutuel betting have created employment and investment op- portunities on a large scale. It is not in the public interest for gaming regu- lation to be an enclave of constitutional deprivation. Respectfully submitted, Dated: HOWARD S. LEVIN July 11, 1988 Pro Se SYDELL R. KRAFT Pro Se (APPENDIX FOLLOWS) 29 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 87-5591 TRANS ATLANTIC GAMES, INC. HOWARD S. LEVIN and SYDELL R. KRAFT ants Vv. W. CARY EDWARDS, in his official cap- acity as Attorney General of the State of New Jersey, ANTHONY J. PARRILLO, in his individual capacity, and R. LANE STEBBINS, in his individual capacity Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 87-2144 (Honorable Dickinson R. Debevoise) A-1 APPENDIX A Submitted Under Third Circuit Rule 12 (6) February 25, 1988 Before: BECKER, HUTCHINSON and SCIRICA, Circuit Judge JUDGMENT ORDER After consideration of all contentions raised by appellants, it is ADJUDGED AND ORDERED that the judgment of the district court be and is hereby AFFIRMED. Costs taxed against appellants. BY THE COURT, Illegible Circuit Judge Attest: s/ Sally Mrvos___ Sally Mrvos, Clerk MAR - 3 1988 A-2 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 87-5591 TRANS ATLANTIC GAMES, INC. HOWARD S. LEVIN and SYDELL R. KRAFT Appellants Vv. W. CARY EDWARDS, in his official cap- acity as Attorney General of the State of New Jersey, ANTHONY J. PARRILLO, in his individual capacity, and R. LANE STEBBINS, in his individual capacity (D.C. Civ. No. 87-2144) SUR PETITION FOR REHEARING Present: GIBBONS, Chief Judge, SEITZ, WEIS, HIGGINBOTHAM, SLOVITER, BECKER, A-3 APPENDIX B STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA and COWEN, Circuit Judges. The petition for rehearing filed by appellant in the above-entitled case hav- ing been submitted to the judges who par- ticipated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court in banc, is denied. BY THE COURT, Circuit Judge Dated: APR 14 1988 A-4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil 87-2144 (DRD) tie 2 See eee a ae x TRANS ATLANTIC GAMES, INC., eG a@i., Plaintiffs, Vv. W. CARY EDWARDS, etc. ot @i., Defendants. a ee ae ee ae ee ee eee X TRANSCRIPT OF PROCEEDINGS June 12, 1987 Newark, New Jersey BEFOR E: HON. DICKINSON R. DEBEVOISE, United States District Judge. A-5 APPENDIX C APPEARANCE S: RAVIN, SARASHON, COOK, BAUMGARTEN, FISCH & BAIME, By: GEORGE R. HIRSCH, Attorney for Plaintiffs. W. CARY EDWARDS, Attorney General By: BENJAMIN CLARKE, R. LANE STEBBINS, Assistant Attorneys General. Pursuant to Section 753 Title 28 United States Code, the following transcript is certified to be an accurate record as taken stenographically in the above- entitled proceedings. s/ Larry Hennefeld Larry Hennefeld, Official Court Reporter 0 OO, eC AGES = N THE COURT: Let me rule on the applica- tion. The plaintiffs in this action are Trans Atlantic Games, Inc., which I will refer to as TAG, Howard S. Levin and Sydell R. Kraft. TAG is in the business of selling and servicing siot machines. Levin and Kraft are principals of TAG. The defendants are W. Cary Edwards, named in his official capacity as Attorney Gen- eral of the State of New Jersey, Anthony J. Parrillo, named individually and who is Director of the New Jersey Division of Gaming Enforcement, and R. Lane Stebbins, who is named individually as a Deputy Attorney General of the State of New Jersey. The New Jersey Legislature has enacted the Casino Control Act, N.J.S.A. 5:12-1, et seq., which establishes a Casino Con- trol Commission as the administrative agency charged with regulating the gaming industry in New Jersey. The statute also establishicd within the Department of Law and Public Safety the Division of Gaming Enforcement as the primary enforcement agency under the Act. The Commission has the responsibility to hear and decide ali license, registra- tion, certificate and permit applications and the Division of Gaming Enforcement has the responsibility to investigate all licensure applications to enforce the Act and to prosecute before the Commission all proceedings for violations of the Act. In June of 1982 TAG applied for licensure as a casino service industry, that is, an industry or agency which could do busi- ness with licensee casinos who have been authorized to conduct business under the Act. After the application for TAG's licensure was made the Division of Gaming Enforcement commenced to investigate its qualifications for licensure. During the pendency of the application and while the Division's investigation was proceeding, various casino licensees petitioned the Commission for permission to transact business with TAG, in accord- ance with the provisions of N.J.S.A. 5:12-92(a). On numerous occasions the petitions were granted and the casino li- censees were authorized to engage in par- ticular transactions with TAG. By letter dated October 14, 1986 the Di- vision of Gaming Enforcement transmitted to the Commission its report and recon- mendation with respect to TAG's licensure application. The factual information contained in the report was drawn from the sources through which the Division investigated TAG. It included financial information supplied by the Securities and Exchange Commission, tax filings and information submitted by TAG and by its principals, Mr. Levin and Miss Kraft. It was the ultimate conclusion of the Division that TAG appeared “unable to de- monstrate by clear and convincing evid- dence its financial stability, integrity and responsibility," as required by N.J.S.A. 5:12-89(b) (1). A-10 By letter dated November 24, 1986 counsel for TAG contested certain of the factual information contained in the Division's letter of October 14, 1986. The Division responded to this letter by advising TAG that the factual disputes were properly the subject of a licensing proceeding before the Commission. By letter dated May 20, 1987 the Commis- sion advised TAG that in view of the Division of Gaming Enforcement's report of October 14, 1986 there was a substan- tial possibility that TAG's licensure application would be denied and further advised TAG that it had 15 days in which to request a hearing contesting the mat- ter before the Commission. TAG was fur- ther advised that if it did not request a hearing within 15 days its licensure ap- plication might be denied by the Commis- sion. A-11 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0053%3A1. Public record. Not legal advice.