# Petition for Writ of Certiorari — Friedman v. Ferguson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 993

## Text

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.

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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

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"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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0303%3A1. Public record. Not legal advice.