Petition for Writ of Certiorari — Friedman v. Ferguson

In The Supreme Court of the paneer vm,

OCTOBER TERM, 1988 atl

WILBUR H. FRIEDMAN, JR.,

Petitioner

Vv.

THOMAS B. FERGUSON, ET AL.

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Counsel for Petitioner

STEPHEN A. ARMSTRONG

10335 Democracy Lane

Fairfax, Virginia 22030

Tel: (703) 241-2855

Of Counsel:

WILBUR H. FRIEDMAN, JR.

Room 863

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

Tel: (202) 254-9329

QUESTION PRESENTED

Whether the lower courts improperly

dismissed this civil rights action on the

grounds of res judicata and collateral

estoppel action where, inter alia, there

was pending in the state courts a case

whose disposition on the merits would

have a decisive impact on the instant

action.

Page i

a -_ (a= 6S — = a

T tel Gs W4. 5 te, oat pth 7 a Tr, -o« as

es jaca ree SAE cee een tote oe 9B en sa A a es

: ~—_ ie ae * ter oy “ES te, ge Cees anata |

aes a. s=

* = «

] oT ‘ -

a M4

sy.

:

a oy & er ans

—

eee

a

aay

4

==

ire oa oneal ae

TABLE OF CONTENTS

REFERENCE TO OPINIONS BELOW----------- 2

JURISDICTION-------------------------- 2

Spatiier--~~-.-..--......--.--....---- 3

1. While one ordinance has been said to

bar the fences which Petitioner has

erected, another ordinance arguably

privileges and requires them.--------- 4

2. Petitioner attempts to invoke the

Ordinance permitting and requiring the

fences, but has found no state forum in

which to invoke the ordinance.-------- 8

3. The Department of Animal Control

delicenses Petitioner’s wife as a dog

fancier because of the backyard

fences;the Animal Matters Hearing Board

determines that the dogs are a public

nuisance based, inter alia, on the loss

of the fancier’s license.------------ 10

4. Petitioner removes the fences, and

applies for a dog fancier’s license.

Department of Animal Control denies the

license. AMHB Sustains the action of the

Department of Animal Control, on the

theory that the reason for the

delicensing was irrelevant to the

proceeding. -------------------------- 14

0 19

1. The Court of Appeals erred by

affirming the dismissal of this suit on

the grounds of preclusion while the

variance case is pending in the state

Page ii

COUrt SYS ER, --< << neem eee eee eeeeee= 19

2. The September 2, 1987 decision of AMHB

is not entitled to preclusive

C£LECt . me nr rn nnn nee nero ---- 20

3. There is an issue, namely the power

of the AMHB, which under Maryland law can

be raised at any time.--------------- 21

4. The conduct of Assistant County

Attorneys Wright and Frankel in the

conduct of the proceedings before AMHB,

and the conduct of AMHB, constituted

independent constitutional

COLrtS,. qm en ee nee renner eee eres----- 26

CONC LUSION<<< 20-22 22222 e eee eee ee eeee= 26

APPENDIX

Court of Appeals” denial of petition for

rehearing----------------------------- i

Court of Appeals” unpublished decision

affirming District Court------------- ii

Memorandum of District Court-------- iii

Unreported opinion of Maryland’s

Court of Special Appeals------------- ix

Court of Appeals of Maryland’s denial

of petition for certiorari--------- XVii

Page iii

TABLE OF AUTHORITIES:

CASES:

Bloor v. Montgomery County,

NO. 87-1239--------------------- 13

Board of Regents v. Roth,

408 U.S. 564 (1972) ------------- 20

Deakins v. Monaghan, U.S

. . 7

108 S.Ct. 523 (January 12, 1988)-20

Karabetis v. City of Baltimore, 72 Md.

App. 407, 530 A.2d 293 (1987)----25

Kremer v. Chemical Construction

Corp., 456 U.S. 461 (1982)------- 26

Tull v. U.S., __ U.S. __, «107 S. Ct.

2378 (April 28, 1987)------------ 24

Van Wagenberg v. Van Wagenberg, 241

Mad. 154, 215 A.2d 812 (1966), cert.

den. 385 U.S. 833---------------- 25

younger v. Harris, 401 U.S. 37 (1971)-3

STATUTES AND ORDINANCES:

Annotated Code of Maryland:

Article 25A, Section 5(J)------------ 21

Montgomery County Code:

Section S<lZoewoces eee ee me eee ee ----- 22

Section 9-25 <<< eres ene o ee essere eeo--- 22

SOCCIOR 9— 20-0 ee owen ee ce seco eo eeooesoe 7

Section $= glee w<e ee << es eee ee eee eooo-== 7

Section 5-6 ]<<<<<<<-<-<--<------------- 5,13

Section $9<-C-1 . glee eon eo ee ooeoooe= 5

OTHER:

Prosser, Handbook of the Law of Torts,

4th Edition (1971)--<-<-<-<--<-<--------- 24

Restatement, 2d of Torts, Vol. 4----- 23

Page iv

ial

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

WILBUR H. FRIEDMAN, JR. Be

Petitioner

V.

THOMAS B. FERGUSON, ET AL.[2]

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Wilbur H. Friedman, Jr.,

Plaintiff below, petitions the Court to

review the conclusion of the United

States Court of Appeals sustaining the

District Court’s dismissal of this suit

on the grounds that his claims are barred

by res judicata and collateral estoppel.

1. Below, Wilbur H. Friedman.

2. Thomas B. Ferguson, Director,

Department of Animal Control, a State

Actor, in his official and individual

capacities; Brett Boe; Carla Coe; Donna

Doe; Frank Foe; Grace Goe; Harry Hoe,

State Actors, Advisors to Defendant

Ferguson, in their official and

individual capacities (identities

currently unknown); Marta Moe; Norma Noe;

Paula Poe; Ralph Roe; Sammy Soe; Tommy

Toe; Private Individuals who conspired

Page l

isla acne iene

REFERENCE TO OPINIONS BELOW

The Appendix hereto contains: (A)

Court of Appeals” order denying the

petition for rehearing; (B) Court of

Appeals’ opinion affirming the District

Court; (C) decision ana oraer of the

District Court; (D) unpublished decision

in a related zoning case by Maryland’s

Court of Special Appeals; and (E)

Maryland’s Court of Appeals” denial of

petition for certiorari in the zoninc

case.

JURISDICTION

This Court’s jurisdiction is invokeec

under 28 U.S.C. Sec. 1254(1) and 2101(c).

The Court of Appeals” order denying

Petitioner's petition for rehearing was

with the foregoing State Actors

(identities currently unknown); Roger W.

Galvin, Chairman, Animal Matters Hearing

Board; Vince Voe; William Woe; Xerxes

xoe; Members of the Animal Matters

Hearing Board, State Actors, in their

official and individual capacities

(identities currently unknown).

Paye 2

filed on July 21, 1988.

STATEMENT

This iS a suit against various

officials of Montgomery County, Maryland,

for injunctive ana declaratory relief,

ana damages under 42 U.S.C. Sec. 1983.

There are pendent claims. At the time

Petitioner filed the suit, a related

zoning case was pending before the

Maryland state courts. In that case,

Petitioner was seeking, as he has without

success for three years, a forum in which

to assert a right arising from an

Ordinance whose validity no one has ever

guestionea. Disposition of that case or.

the merits would have a decisive impact

on the instant suit. The District Court

dismissed this suit, on the grounds that

as to certain elements of the suit,

abstention wasS warranted under Younger v.

Harris, 401 U.S. 37 (1971); as to

Page 3

ae ay,

Aad faa 2 Fe re

ly

Petitioner’s allegations of harassment,

insufficient eviaence appearec to Support

the allegations; and as to other elements

of the suit, they were precluded by

previous state court decisions. The Court

of Appeals affirmed the decision of the

District Court solely on the grounds that

Petitioner’s claims were barrea by res

judicata and collateral estoppel.

Dismissal of this suit iS improper

until the issue raised by the state court

case is resolved either in state court or

in this very suit. In addition, this

Suit raises one issue, namely the power

of the county administrative agency,

which under state law is not subject to

preclusion.

1. While one ordinance has been said

to bar the fences which Petitioner has

erected, another ordinance arguably

privileges and requires them.

Page 4

More particularly, and as set forth

in Petitioner’s verified complaint

herein, Section 59-C-1.31 of the

Montcomery County zoning code states that

kennels, non-commercial are permitted

uses in the zone wherein Petitioner

resides, provided that "no accessory

buildings, enclosures or runs may be

constructed or used for these dogs."

On the other hand, the animal

control ordinance, Section 5-67,

privileges a home owner in the zone

wherein Petitioner resides to maintain a

kennel, non-commercial and to be a dog

fancier. A "dog fancier" is a person who

keeps three or more dogs used for various

purposes, including show, “within or

adjoining a private residence” and a "dog

fancier’s kennel" is one located "within

Or adjoining a private residence for the

maintenance or training of the dogs.” Dog

Page 5

oar ae

7 a =

a -

oa =

FS IES | As HES ashes

Ai

iy

fancier’s kennels must be licensed;

Surplus puppies may be bred occasionally

and sold by the fancier if the breeding

is for a non-commercial purpose and not

the primary function of the kennel; there

is a prima facie test of commercial

breeding, namely six litters a year; ana

dog fanciers are exempt from the

requirement of licensing dogs

individually. Licenses, apparently

including dog fanciers” licenses, may not

be issued for any establishment the

location or other characteristic of which

violates the zoning code. There is no

specified upper limit on dogs. With

respect to dog fanciers, the form

utilized by the Department of Animal

Control indicates that the current

licensing fee for a kennel with 3-10 dogs

is $10. per year, while the licensing

fee for a kennel of more than 10 dogs is

Page 6

$20. per year. Three sections of the

animal control ordinance require the use

of enclosures in certain circumstances.

Section 5-30 requires the owner of a

female dog while in heat to “confine it

in a builainc, compartment, or other

secure enclosure in such a manner as to

prevent the attraction of other aogs."

Section 5-31 requires the owners of a

vicious or dangerous animal to keep such

animal "confined in a building,

compartment, or other secure enclosure in

such a manner as will prevent direct

contact between such animal and human

beings or other animals." A third

ordinance requires the enclosure of

attack dogs.

There is obviously tension between

the animal control ordinance ana the

zoning code. Thus, some dog fanciers

have attack dogs, vicious and dangerous

Page 7

es

docs, and many have female dogs which are

at times in heat. In addition, it 1s

difficult to see how docs can be

maintained "adjoining a private

resiagence” without fences. Finally, as

fences are often necessary to confine

puppies, the right to breed puppies would

seem to imply a right to use fences to

confine them.

2. Petitioner attempts to invoke the

Ordinance permitting and requiring the

fences, but has found no state forum in

which to invoke the ordinance.

For several years, Petitioner’s wife

had been a licensed doa fancier in

Montgomery County. She utilized several

fences in the back yard to confine

puppies and female dogs in heat.[3] On

3. The County Attorney’s brief below, p.

5, par. 2, states: "A civil citation was

issued to [Petitioner] on May 8, 1985,

charging him with maintaining a dog

enclosure..." That citation became the

Subject of a trial in District Court, and

Page 8

Aucust 8, 1985, Petitioner applied to

Montgomery County’s Department of

Environmental Protection (DEP) for a

building permit for the fences for the

Stated purposes of confining puppies and

female dogs in heat. DEP denied the

permit, on the grounds that the zoning

code prohibits an enclosure for a kennel,

noncommercial, in the zone in which

Petitioner resides. Thereafter Petitioner

filed a petition for a variance with

Montgomery County’s Board of Appeals, a

tribunal which deciaeS zoning issues. At

all times Petitioner has argued that the

Board of Appeals was required to look

outside the zoning code to determine

whether the "use" said to be barred by

an appeal the Circuit Court for

Montgomery County in Criminal No. 39216,

in which that Court, dismissed the

complaint for insufficient evidence of

violation. The court did not consider

the interplay between the two regulatory

schemes.

=< UCU

the zoning code was required or permitted

by the animal control ordinance, ana to

harmonize the two reculatory schenies.

The Boara of Appeals and Maryland courts,

Appendices D and E, have each declined to

consider this substantive contention;

thus the Court of Special Appeals opined

that Petitioner dia not enjoy standing to

invoke the dog fancier ordinance because,

as it erroneously thought, Petitioner,

unlike his wife, had not applied for a

agog fancier license. The zoning case is

back before Maryland’s Court of Appeals

On a motion for reconsideration.

3. The Department of Animal Control

delicenses Petitioner’s wife as a dog

fancier because of the backyard fences;

the Animal Matters Hearing Board

determines that the dogs are a public

nuisance based, inter alia, on the loss

of the fancier’s license.

Page 10

—

an

In the meantime, on August 15, 1985,

the Montgomery County Department of

Animal Control administratively revokea

Petitioner’s wife’s doa fancier license

solely pecause of the existence of the

allegea zoning violation, namely the

existence of the internal fences in

Petitioner’s back yarda.[4] Thereafter, on

January 14, 1986, the Animal Matters

Hearing Board (AMHB) rendered a decision,

which ran against both Petitioner and his

wife, that Bloor’s dogs were a public

nuisance.[5] The decision contained a

finding of fact, namely that during the

year 1985, 27 dogs were owned and

controlled by Petitioner and his wife on

the property in November 1985, and at the

time of hearing there were eight adult

dogs. The decision ends: "Approved as

4. Defendant’s brief to the Court of

Appeals, Ex. 2.

5. Defendants brief to the Court of

Appeals, Ex. 3.

Page ll

to form and legality. Office of the

County Attorney. By [Assistant County

Attorney] A. Wright. 1-10-86." While

there was no statement of reasons for

AMHB’s decision, 17 months thereafter,

Petitioner discovered that AMHB, in

making its decision, had relied on the

fact that Petitioner’s wife had been

delicensed as a dog fancier. Thus, on

June 24, 1987, Petitioner found in the

Department of Animal Control case file a

letter, dated June 30, 1986, from Board

member Braddy, who participated in the

case, to AMHB. [6] The letter commences:

It was the understanding of the Board

[when deciding the nuisance case] that

Mrs. Bloor was no loncer licensed as a

dog fancier.... A preponderance of

evidence showed that the animals in the

Stated case were being maintained for

breeding and the sale of offsprings on a

commercial scale. It is understood that

without properly being licensed as a dog

fancier Ms. Bloor lost her privilege to

6. Petitioner's opposition to Defendants”

motion for summary judgment, Docket Entry

14, attachment C.

Page 12

ie elt i :

‘ ier “a

ee

»? _ i i ates

_

i ies _

i ¢

Ae) ee rane a

ae Fite? sagt

function as a dog fancier... thereby

reverting her status of operation to that

of commercial kennel, as outlined in...

Section 5-67(c) [of the Montgomery County

Code. ]

This case made its way through the

Maryland Courts to this Court, No. 87-

1239, Bloor v. Montgomery County, which

denied certiorari on March 20, 1988.

4. Petitioner removes the fences,

and applies for a dog fancier’s license.

Department of Animal Control denies the

license. AMHB sustains the action of the

Department of Animal Control, on the

theory that the reason for the

aelicensing was irrelevant to the

proceedins.

Thereafter, in October 1986,

Petitioner removed the fencinc in his

back yard. He thereby also removed the

reason why his wife’s fancier license haa

been revokea. He then applied for a dog

fancier license. By letter dated

Page 13

November 7, 1986, Defencant Ferguson

deniea the fancier license on the grounds

that the AMHB, which limited the number

of permissible aogs to two, hac

implicitly found that Petitioner could

not be granted a fancier’s license. The

copy of the letter in the record contains

the following notation py "HAW," Harriet

A. West, Manacer of the Administrative

Services Section of the Department of

Animal Control and clerk of AMHE: "This

letter was revised in my presence by

[Assistant County Attorney] Wright before

it was delivered to Mr. Friedman." [7]

Petitioner filed with AMHB an appeal

of Defendant Ferguson’s November 7

ruling. At hearing on June 24, 1967, [8]

the panel consistea of laymen who, the

record shows, are deferential to the

7. + Petitioner’s opposition to

Defendants” motion for summary judgment,

Docket Entry 14, attachment C.

8. Ibid., attachment N.

Page 14

County Attorney’s office. Assistant

County Attorney Frankel put into evidence

various materials, including a copy of

Defendant Ferguson’s letter denying

Petitioner his fancier license, TR. 6-

10, but not a copy of Mr. Ferguson’s

August 1985 letter delicensing

Petitioner’s wife Bloor as a dog fancier

because of the fences in Petitioner's

pack yard. When Petitioner attempted to

introduce evidence about Bloor’s having

been delicenseda, Mr. Frankel said that

the reason for the delicensing was

irrelevant to the proceeding. The

position of Mr. Frankel immediately

became the law of the case; without

waiting for his colleagues to agree,

Acting Chairman Cohen said that he would

not accept evidence on the reason why

Petitioner’s wife had been delicensed.

As an example of AMHB’s deference to the

okie Ce aL Weer ee

SAPP RDN Bs Fe dee CHS ll ihn rea A bw ethink HOLE

a ne Cn ee a

County Attorney’s office, Mr. Cchen

asked Mr. Frankel for legal advice. TR.

27, 1. 13. Petitioner objectec that Mr.

Frankel was a litigant and not an

advisor. Mr. Cohen responded that Mr.

Frankel was a lawyer. When Petitioner

attemptea to adduce evidence showing the

relationship between the delicensing of

Bloor ana the AMHB decision in the

earlier nuisance action, Mr. Frankel

objected, TR. 40, 1.12. Mr. Cohen said

that he would take administrative notice

of "all the file of 35-85," i.e., the

transcript and exhibits and AMHB‘s

administrative file. TR. 40, 1.7,18;

TR. €4,- 1.99 TR. S54, 2.20. When

Petitioner attempted to introduce a

memorandum, part of the public record and

in the administrative file, from

Assistant County Attorney Wright to

Defendant Ferguson inconsistent with the

Pace 16

November 7, 1986 letter to Petitioner

that Wright "revised and approved," Mr.

Frankel objected to its introduction and

Mr. Cohen initially agreed. TR. 41,

Benen ame Sa, 1.5, 6. Me. Cohen

attempted to prevent Petitioner from

making a closing argument basea on

Bloor’s having been delicensed in August

1985.

By decision signed by acting Chairman

Cohen on September 2, 1987, and served on

Petitioner on October 19, AMHB sustained

the decision of Defendant Ferguson. [9]

AMHB’s decision reads:

[AMHB’s] previous order limits the number

of dogs... to a total of two.... [This

decision] has been upheld... in the

Montgomery County Circuit Court... and in

the Maryland Court of Special Appeais....

[O]n November 7, 1987 [Sic]...

[Defendant] Ferguson denied

[Petitioner’s] application for a dog

fancier license... because he did not

meet the legal requirement for the

minimum number of dogs owned by a dog

9. Petitioner’s Brief on Appeal,

Attachment 7.

Page 17

Pres

PO a Rian BSE sb ae sd aki Pree

fancier, which is three.... [Petitioner]

failed to establish that the aecision of

[Defendant Ferguson] was arbitrary,

illegal, or factually unwarranted....

[AMHB] hereby affirms the decision of

[Defendant Ferguson] to deny

[Petitioner’s] application for a dog

fancier’s license.... Approved as to form

and legality: Office of the County

Attorney by A. Wright.

As notea, the members of the AMHB who

decided the case are not lawyers, and the

transcript of the hearing in this case

indicates that Acting Chairman Cohen does

not possess the ability to have drafted

the decision of AMHB. fThus, it is

certain that Mr. Wright supervised the

Grafting of the decision, and almost

certain that he drafted it himself. It

is also almost certain from the

transcript that Mr. Cohen sought advice

from Mr. Wright and highly likely that

Mr. Wright obliged.

In addition, on June 4, 1986, the

ubiguitous Mr. Wright also signed a

memorandum to the AMHB as Mr. Frankel’s

Page 18

supervisor opposing a motion of Bloor and

Petitioner in the closely related

nuisance case. [10]

ARGUMENT

1. The Court of Appeals erred by

affirming the dismissal of this Suit on

the grounds of preclusion while the

variance case is pending in the state

court system.

If the state court system finds that

once the zoning code and the animal

control ordinance are reconciled,

Petitioner was entitled to a building

permit for the fences, it would follow

that the delicensing of his wife Bloor as

a fancier, precisely because of the

existence of the fences, was improper.

Accordingly, the January 14, 1986

nuisance of AMHB which was predicated on

10. Petitioner’ opposition to Defendants’

motion for summary judgment, Attachment I.

Page 19

—

'

es

’

‘

‘ La a,

5 4 . = a

ae. =“ é 7 i - : i a ea wa

4 3 7 4s ed J - = U - . . Be an

Je & rc . - =a na - “ al

* a c 6 : * in 2 f a ; by A

the fact that Bloor had been delicensed

as a dog fancier would not be entitled to

preclusive effect. On the other hand, if

the Maryland courts refuse to reconcile

the two regulatory schemes, it would be

an abuse of discretion for the Federal

courts to refuse to reconcile them in

this suit. The animal control ordinance

has created a constitutionally protected

property interest. Board of Regents v.

Roth, 408 U.S. 564, 577 (1972. As the

State court system has declined to

provide a forum in which Petitioner can

vindicate this right, the federal court

should do so. Deakins v. Monaghan, ___

U.S. __, 108 S.Ct. 523 (January 12,

1988).

2. The September 2, 1987 decision of

AMHB is not entitled to preclusive effect

because (a) it is predicated on the

January 14, 1986 AMHB decision and (b) it

Page 20

contains grave procedural defects in the

hearing and the decisional process.

Assistant County Attorney Wright advised

both Defendant Ferguson and the

administrative agency which approved

Defenaant Ferguson’s conduct. Assistant

County Attorney David Frankel attempted

to prevent Petitioner from introducing

evidence and argument in support of his

position in circumstances where he knew

that AMHB would defer to his position.

This is a denial of a full and fair

hearing.

3. There is an issue, namely the

power of the AMHB, which Petitioner first

raised to the United States District

Court, but which under Maryland law can

be raised at any time.

Article 25A, Section 5(J) of the

Annotated Code of Maryland, entitled

"health and nuisances," empowers home

Page 21

rule counties to:

prevent, abate and remove nuisances; to

prevent the introduction of contagious

diseases into such county; to regulate

the places of manufacturing soap and

candles and fertilizers, slaughterhouses,

packing houses, canneries, factories,

workshops, mines, manufacturing plants

and any and all places where offensive

trades may be carried on, or which may

involve or give rise to unsanitary

conditions or conditions detrimental to

health.

: Article 5 of the Montgomery County

Code, the Animal Control Ordinance,

Section 5-25 thereof, states:

It shall be grounds for a... finding of

public nuisance pursuant to Section 5-12

of this chapter for:... (c) Any animal or

animals to cause unsanitary, dangerous or

offensive conditions by virtue of the

size or number of animals maintained at a

Single location or due to the inadequacy

of the facilities. (d) Any animal to

make or cause noises audible within a

building on adjacent property and of

sufficient volume so as to disturb the

guiet enjoyment of the occupants

thereof." (emphasis supplied)

Section 12, entitled "authority to

abate public nuisances," states that

Animal Matters Hearing Board enjoys the

authority to declare, after written

Page 22

complaint ana hearing, that an animal or

a facility is a public nuisance and to

"issue cease and desist, impoundment,

payment of damages, destruction, or other

orders to abate a public nuisance," and

to require the animal owner to "comply

with an impoundment order by delivering

the animal to the animal control

orticer.”

AMHB’s January 14, 1986,

decision found that Bloor’s dogs were

"public" nuisances based, inter alia, on

the barking and odors of the dogs.

However, these occurrences are private,

rather than public nuisances. Thus,

nuisances are either public, 1.€., an

unreasonable interference with a right

common to the general public, or private,

a nontrespassory invasion of of another’s

interest in the private use and enjoyment

of land. Restatement,2d of Torts, Vol.

Page 23

4, Sec. 821A, 821D (1979). Accord: Tull

¥. U.8., Vee , 207 8. on

2378, 2386 (April 28, 1987), citing

Prosser, Handbook of the Law of Torts,

Weta ent sat allt

4th Edition (1971), at p. 583: A public

nuisance is an act or omission which

"obstructs or causes inconvenience or

damage to the public in the exercise of

rights common to all Her Majesty's

Subjects." Prosser, describes the

separate evolution of public and private

nuisances, pp. 571-573, and notes at p.

573 that "the two have almost nothing in

common." Prosser, continues: [p.585] To

be considered public, the nuisance must

affect an interest common to the general

public, rather than peculiar to one

individual, or several. [p.591] The

essence of a private nuisance is an

interference with the use and enjoyment

of land. [Private nuisances include]

Page 24

v

-

2

i.)

Sipe:

> @

ores

is

re

EPR Hired eee ae Me

"the dog next door which makes night

hideous with his howls"; [p.592] [A

private nuisance] may consist of a

disturbance of the comfort or convenience

of the occupant, as by unpleasant

odors... [or] loud noises.

Petitioner submits that under state

law, the State of Maryland has not

Granted Montgomery County the power to

abate private nuisances. And in

Maryland, one can always attack the power

of a court. Van Wagenberg v. Van

Wagenberg, 241 Md. 154, 215 A.2d 812

(1966), cert. den. 385 U.S. 833. And

it follows that one can also always

attack the power of the agency.

Karabetis v. City of Baltimore, 72 Md.

App. 407, 530 A.2d 293, 298-299 (1987).

If questions of the power of AMHB are not

entitled to preclusive effect in other

fora, there is no reason to give them

Page 25

AO OS eit ote

preclusive effect in related litigation

in federal court under 42 U.S.C. Sec.

1983. Kremer v. Chemical Construction

Corp., 456 U.S. 461, 482 (1982).

4. Finally, the conduct ofr Assistant

County Attorneys Wright and Frankel in

the conduct of the proceedings before

AMHB, and the conduct of AMHB,

constituted independent constitutional

torts, namely denial of meaningful access

to the administrative agency. The mere

fact that the constitutional torts

occurred at a hearing iS no grounds to

dispose of them on the grounds of

preclusion.

CONCLUSION

This Court should remand to the Court

of Appeals, with directions to remand

this case to the District Court and to

retain it until the related zoning case

has been concluded, and to certify to

Page 26

Maryland’s Court of Appeals the issue of

the power of AMHB to regulate private

nuisances. Alternatively, the Court

should make such other disposition as is

just and proper.

Respectfully submitted,

Stephen A. Armstrong

10335 Democracy Lane

Fairfax, Virginia 22030

Tel: (703)-241-2855

Of Counsel:

Wilbur H. Friedman, Jr.

Room 863

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

Tel: (202) 254-9329

Page 27

UNITED STATE COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILBUR H. FRIEDMAN

Plaintiff-Appellant

Vv. No. 87-3758

THOMAS B. FERGUSON, et al.

Defendants-Appellees

On Petition for Rehearing

Upon consideration of the appellants

pro se petition for rehearing,

IT IS ORDERED that the petition for

rehearing be denied.

Entered at the direction of Judge

Murnaghan, with the concurrence of Judge

Widener ana Judce Phillips.

Filed July 21, 1988

UNITED STATE COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILBUR H. FRIEDMAN

Plaintiff-Appellant

Vv. No. 87-3758

THOMAS B. FERGUSON, et al.

Defendants-Appellees

Appeal from the United States District

Court for the District of Maryland, at

Baltimore, Joseph C. Howard Unitea States

District Judge (C/A No. 86-3640)

Before Wiagener, Phillips anc Murnaghan,

Circuit Judges

Per curiam:

Wilbur H. Friedman appeals from the

district court ’s order denying relief

under 42 U.S.C. Sec. 1983. Our review of

the record and the district court s

Opinion discloses that this appeal is

without merit. Accordingly, we affirm

based upon the district court’s

conclusion that Friedman’s claims were

barred by res judicata and collateral

Pace ii

estoppel. Friedman v. Ferguson, C/A No.

86-3640 (D. Md. Sept. 28, 1987). We

agispense with oral argument because the

facts and legal contentions are

adequately presented in the materials

before the Court and argument would not

aid in the decisional process.

Appellant ’s motions to file a reply brief

and for the Court to-take judicial notice

of three documents (an order of the

Circuit Court for Montgomery County filed

July 29, 1987, a letter dated May 14,

1986, and an application for a dog

fancier’s license) are granted.

AFFIRMED

Decided June 29, 1988

Page iil

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

WILBUR H. FRIEDMAN

Plaintiff

v. Civil No.

JH-86-3640

THOMAS B. FERGUSON, et al.

Defendants

MEMORANDUM

Pending before the Court is

plaintiff°s complaint filed pursuant to

42 U.S.C. Sec. 1983 and alleging that he

was denied a "dog fancier’s license" in

violation of his constitutional rights.

Named as defendants are the Director of

the Montgomery County Department of

Animal Control, his advisors, and the

Chairman and other members of the Animal

Matters Hearing Board ("Board").

The immediate matter under

consideration herein is defendants™

motion for summary judgment. In their

Page iv

'

ee

=

=

ae

= Ft mal, i <i, : 4 7 ’ : 7 : 7

be se on 7 bei oe ie eRe ee Oy ron Te oe ’

motion defendants contend that, under the

facts of this case, summary judgment must

be granted because litigation of this

matter is precluded by the doctrine of

collateral estoppel; this Court should

abstain in accordance with Younger v.

Harris, 401 U.S. 37 (1971); and that the

defendants are entitled to qualified

immunity. Upon review of the pleadings,

the Court finds that no hearing is

necessary. Local Rule 6(G).

The doctrine of Younger v. Harris,

Supra, or “abstention” arises not from

"lack of jurisdiction in the District

Court, but from strong policies

counseling against the exercise of such

jurisdiction where particular kinds of

State proceedings have already been

commenced." Ohio Civil Rights Commission

v. Dayton Christian Schools, __ U.S.

, 106 S.Ct. 2718, 2733 (1986). The

Page v

al ae nage ge

a

os ae

A pT Gaetan

i

‘. Vi - : 7 $

eA,

| i

bs i

= i ro

;

im fl = i

= ; .

roa ~ r

-

= iad

a eine tne Nig 6 ere

Younger principle, first applied to state

criminal proceedings, has since been held

applicable to state administrative

proceedings where important state

interests are involved and the plaintiff

would have a full and fair opportunity to

litigate his Constitutional claim. Gibson

v. Berryhill,, 411 U.S. 564 (1973) (a

State administrative proceeding

addressing the revocation of a license to

practice medicine required abstention);

Middlesex County Ethics Committee v.

Garden State Bar Assn., 457 U.S. 423

(1982). (federal courts should abstain

from enjoining lawyer disciplinary

proceedings initiated by the state ethics

committee. )

In the present case, plaintiff has

challenged the denial of his request for

a dog fancier’s license and that matter

is currently pending an appealable

Page vi

;

:

administrative proceeding. Such matters

of public health and safety are

inherently within the province of state

ana local government.

In his memorandum responding to

defendants’ motion for summary judgment,

plaintiff alleges, in a conclusory

manner, that he is being subjected to

harassment by the County Attorney’s

offices. This statement, and all others,

are seemingly incorporated in Plaintiff's

brief affidavit. The Court has reviewed

plaintiff°s memorandum and finds

insufficient facts to Support this

charge. est wei it is plaintiff who has

persisted in the prosecution of this

matter. Furthermore, the transcripts of

various proceedings before the board and

the state court opinions submitted in

Support of plaintiff°s motions show that

plaintiff has not been unable to obtain a

Page vii

full and fair hearing of his

constitutional claims before the state

tribunals. Accordingly, this court will

abstain from deciding this matter.

In addition, the Court notes that the

matters alleged in plaintiff°s complaint

have previously been alleged and decided

by in the state courts. "Allen [v.

McCurry, 449 U.S. 90 (1980)]... made

clear issues actually litigated in a

State court proceeding are entitled to

the same preclusive effect ina

Subsequent federal Sec. 1983 action as

they enjoy in the court of the state

where the judgment was rendered." Migra

v. Warren District School Board of

Education, et al., 465 U.S. 75 (1984).

Accordingly, summary judgment in

favor of the defendants will be granted

by separate order.

/s/ Joseph C. Howard, United States

District Judge. Dated: 8/27/87

Page viii

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

NO. 1414

September Term, 1987

WILBUR H. FRIEDMAN

V.

MONTGOMERY COUNTY, MARYLAND

Garrity

Bell, Robert M.

Getty, James S. (Retired, specially assigned)

PER CURIAM

Filed May 18, 1988

This is an appeal by Wilbur H.

Friedman, appellant, from the judgment of

the Circuit Court for Montgomery County

affirming the County Board of Appeals”

dismissal of appellant ’s petition for

variance. It presents but one question:

Whether the Board of Appeals for

Montgomery County and the Circuit Court

for Montgomery County are required to

look outside the zoning code to determine

Page 1x

whether a "use" said to be barred by the

zoning Code is required or permitted by

another regulatory scheme, and whether

the Board and the Circuit Court are

required to harmonize the two regulatory

schemes. [1]

We will affirm.

Appellants residence is located in

the R-60 zone in Montgomery County. A

permitted are that zone is a "kennel,

non-commercial", [2] "[p]rovided that no

1. Appellant purports to reserve for the

federal courts an additional question:

"Whether, by its failure to consider the

other regulatory scheme, the Circuit

Court has committed a constitutional tort

by denying Land owner a forum in which to

assert rights arising from that second

regulatory scheme." He makes no argument

On that issue and, thus, we will also

refrain from doing so.

2. Sec. 59-A-2.1 of the Montgomery

County Code defines "kennel, non-

commercial", as [a]ny building or

buildings and land use, designed or

arranged for the boarding, breeding or

care of dogs, cats, pets, fowl or other

domestic animals belonging to the owner

thereof, kept for purposes of show,

hunting, or as pets, not including riding

Stables."

Page x

accessory buildings, enclosures or runs

may be constructed or used for these

dogs.” Sec. 59-C-1.31, Montgomery County

Code. The County Board of Appeals is

authorized by Sec. 59-A-4.11(b) to hear

and decide "[pJetitions for variances

from the strict application of [the

zoning Ordinance], as provided in Article

G-3"; however, the Board may not, "under

the guise of a variance,... authorize a

use Of land not otherwise permitted,"

Sec. 59-G-3.1.(d), or “validate, ratify

or legalize any violation of law or any

of the regulations of [the zoning

Ordinance.] Sec. 59-A-4.126.

On August 6, 1985, appellant filed an

application with the Montgomery County

Department of Environmental Protection

for a permit to erect a series of fences

on his property. The purpose of the

fences was "to pen puppies for owner’s

Page xi

kennel, non-commercial." That application

was denied on the basis of the

prohibition contained in Sec. 59-C-1.3l.

Appellant did not appeal the denial;

rather he submitted an application to the

County Board of Appeals for a variance

from the application of Sec. 59-C-1.31l.

Appellant ’s application for variance

was referred to a hearing examiner. The

hearing examiner, after conducting a

public hearing, filed his report and

recommendation, in which he concluded

that the Board did not have authority to

Grant a use variance for an accessory

use. He thus recommended that the

appellant ’s application be dismissed for

lack of jurisdiction. The Board adopted

the hearing officer’s report and

recommendation as itsS opinion and

appellant appealed to the Circuit Court.

Neither of these decisions specifically

Page xii

considered or attempted to harmonize

the Zoning Ordinance and the Animal

Control Ordinance, Chapter 5 of the

Montgomery County Code, although

appellant contends that he requested that

they do so.

Appellant wisely does not make any

contention that the Board’s decision on

the merits of his variance application is

incorrect. The entire thrust of

appellants argument on appeal is that

the Board should have considered

provisions of Chapter 5 of the Montcomery

County Code (Animal Control),

specifically Sec. 5-1, 5-30, 5-31, 5-32,

and 5-67(c) and (f), in deciding his

application. He asserts that these

provisions should have been "harmonized"

With the applicable provisions of Chapter

59.

Aside from the fact that, with the

Page xiii

exception of Sec. 5-30, the sections

~ cited by appellant do not apply to

appellant ’s situation, the short answer

to appellant ’s argument is that none of

those sections is relevant to a decision

to grant or deny a use variance. [3] Sec.

3. Sec. 5-1 defines a "dog fancier" (one

who owns or keeps three or more dogs

within or adjoining a private residence,

three or more dogs for non-commercial

purposes) and "dog fancier’s kennel"

(private kennel maintained by a dog

fancier within or adjoining a private

residence for the maintenance or training

of dogs owned or kept by the fancier).

Sec. 5-67(c) and (f) relate to the

requirement that a dog fancier’s kennel

be licensed and the prohibition against

issuing a license for a location which is

in violation of the toning Code. -

Appellant does not contend that he is a

dog fancier, owns a dog fancier’s kennel,

is licensed to operate a dog fancier’s

kennel or has applied for a license to

operate a dog fancier’s kennel, which was

refused. At best, he is contending that

his wife is a dog fancier. Even at that,

however, he implicitly acknowledges that

the purpose for seeking a variance as to

enable his wife to run a kennel, non-

commercial on the property. Accordingly,

appellant does not have standing to make

an argument premised on these sections.

Appellant conceded at oral argument that

he does not have vicious or dangerous

animals, Sec. 5-31, or attack dogs, Sec.

Page xiv

5-30, the only section that arguably

applies to appellants situation, relates

to the confinement of female dogs in

heat. It provides:

Every owner of a female dog shall,

whenever the dog is in heat, keep it

confined in a building, compartment or

other secure enclosure, in such manner as

to prevent the attraction of other

animals.

It is apparent that this section in

no way conflicts with Sec. 59-C-1.3l.

Sec. 5-30 does-not require that female

dogs in heat be confined out of doors; it

requires only that they be confined in a

building, compartment or other secure

enclosure, in such manner as to prevent

the attraction of other dogs. Since such

confinement could be indoors, it is

patent that compliance with its mandate

may readily be had without the need for a

variance. Therefore, this provision does

5-32. Consequently, he does not have

standing pursuant to these sections

either.

Page xv

not conflict with the Zoning Ordinance.

Since the provisions in Chapter 5

relied on by appellant either are

inapplicable to appellant ’s situation or

do not conflict with the Zoning

Ordinance, the Board had no occasion to

"harmonize" them with the Zoning

Ordinance. It follows that the court dia

not err in affirming its decision.

JUDGMENT AFFIRMED. COSTS TO BE PAID BY

APPELLANT.

Page xvi

IN THE COURT OF APPEALS OF MARYLAND

WILBUR H. FRIEDMAN

v. Petition Docket No. 189

MONTGOMERY COUNTY, MARYLAND

ORDER

Upon consideration of the petition

for a writ of certiorari to the Court of

Special Appeals in the above-entitled

case, it iS ORDERED, by the Court of

Appeals of Maryland, that the petition

be, and it is hereby, denied as there has

been no showing that review by certiorari

is desirable or in the public interest.

/s/ Robert C. Murphy, Chief Judge

Dated: August 29, 1988

Page xvii

OO