Opposition — Second Avenue Ltd. Dividend Housing Ass'n v. Hills

‘Supreme Court, u. $,

FILED

DEC 15 1976

OT SSR ne ee I eo Ee JR., CLERK |

Supreme Court of the Gnited States

October Term, 1976

No. 76 670

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF RESPONDENT MICHIGAN STATE

HOUSING DEVELOPMENT AUTHORITY

IN OPPOSITION —

FRANK J. KELLEY Gregory L. Curtner

ns dimaah tor Oo Special Assistant Attorney

- Miller, Canfield, Paddock

Robert A. and Stone

Solicitor 2500 Detroit Bank & Trust Bidg.

Milton L. Firest Fp tad Sat

Assistant Attorney General Herbert G. Sparrow,

Special Assistant Attorney

Joseph K. Sobkowski General

Assistant Attorney Gcneral Wright, McKean,

aro ee Cudlip & Moon

800 First National Building

Lansing, Michigan 48913 Detroit, Michigan 48226

i

TABLE OF CONTENTS

Page

Table of Authorities ii

Opinions Below 1

Jurisdiction 1

Statute Involved ....... , ' 2

Additional Questions Involved am ¥

Statement of the Case 2

ARGUMENT

I. THIS COURT LACKS JURISDICTION BE-

CAUSE THE PETITION FOR CERTIORARI

WAS NOT TIMELY FILED 6

II. PETITIONERS HAVE SHOWN NO BASIS

FOR GRANTING A WRIT OF CERTIORARI 8

CONCLUSION 10

ii

TABLE OF AUTHORITIES

Page

Cantor v. The Detroit Edison Company, — U.S. —, 49

L. Ed.2d 1141 (July 6, 1976) ......... , 9

Department of Banking v. Pink, 317 U.S. 264 (1942)... 7

Durham v. United States, 401 U.S. 481 (1971) -............. 7

Federal Power Commission v. Idaho Power Co., 344

iy SO ) | ee 7

Federal Trade Commission v. Minneapolis-Honeywell

Regulator Co., 344 U.S. 206, 211 (1952)

Gotham Can Co. v. United States, 281 U.S. 706, (1930)..

Hartford Accident & Indemnity Co. v. Bunn, 285 U.S.

169, 177-78 (1932) ...........c--ec--e- 7

Hills v. Gautreaux, __ U.S. __, 96 8. Ct. 1538 (April

OR SOU oceans oN

Shannon v. HUD! 436 F.2d 809 (3rd Cir. 1970) ............

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399,

PY) EN 7

United States v. Adams, 383 U.S. 39 (1966) 7

Warth v. Seldin, 422 U.S. 490 (1975) 8

Other Authorities

Rule 4, F.R.A.P. 7

Rules 35(c) and 40, F.R.A.P. .... 7

Sixth Circuit Rule 3(b) ....... 7

IN THE

Supreme Court of the Gnited States

October Term, 1976

SECOND AVENUE LIMITED DIVIDEND

HOUSING ASSOCIATION, et al,

Petitioners,

vs. No. 76 670

CARLA ANDERSON HILLS, Secretary,

Department Housing & Urban

Development, et al,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF RESPONDENT MICHIGAN STATE

HOUSING DEVELOPMENT AUTHORITY

IN OPPOSITION

OPINIONS BELOW

JURISDICTION

The unreported opinion and judgment of the Court of

Appeals, affirming the District Court, were entered April 8,

1976 (Appendix, 48). The instant petition was filed with this

Court on November 12, 1976, considerably more than 90

days thereafter. No extension of time for applying for a

writ of certiorari was granted or even requested by Peti-

tioners.

A Petition for Rehearing before the Sixth Circuit was

filed April 28, 1976 and denied as being ‘‘without merit’’ on

May 25, 1976. On or about August 19, 1976 Petitioners filed

in this Court a Motion for leave to proceed in forma

2

pauperis and to dispense with printing the petition which

was denied on October 4, 1976.

Under any proper computation of the 90-day period, the

petition filed on November 12, 1976 was not timely. Pur-

suant to 28 U.S.C. §2101(c), this Court lacks jurisdiction

of this matter.

STATUTE INVOLVED

The statute governing the time for filing a petition for

certiorari directed to a court of appeals in a civil action is

28 U.S.C. §2101(c) :

‘*Any other appeal or any writ of certiorari in-

tended to bring any judgment or decree in a civil

action, suit or proceeding before the Supreme Court

for review shall be taken or applied for within ninety

days before the entry of such judgment or decree. A

justice of the Supreme Court, for good cause shown,

may extend the time for applying for a writ of

certiorari for a period not exceeding sixty days.’’

ADDITIONAL QUESTIONS INVOLVED

1. Whether this Court has jurisdiction to entertain the

instant petition filed more than ninety days after entry of

the opinion and judgment of the Court of Appeals?

2. Whether the questions presented by Petitioner in this

Court merit consideration under any of the standards for

granting a writ of certiorari?

STATEMENT OF THE CASE

The stated nature of this case, according to the Complaint

and First Amended Complaint was broad ranging and

massive violations of federal housing statutes, federal and

3

state antitrust laws, the federal and state securities acts,

the United States and Michigan Constitutions, the Internal

Revenue Code, the Civil Rights Acts of 1867, 1964 and 1968,

breach of contract, breach of fiduciary duty, misrepresenta-

tion, fraud and deceit. This catalog of theories was asserted

to support various injunctions, mandamus, accounting,

imposition of a constructive trust, receivership, declara-

tory judgment, invalidation of outstanding bonds, and dam-

ages totaling approximately $13,000,000.00. The principal

defendant was the Michigan State Housing Development

Authority (‘*The Authority’’), an instrumentality of the

State of Michigan. The Authority sought prompt resolu-

tion of these matters, because the Complaint and First

Amended Complaint sought to declare all prior bond issues

of the Authority illegal and void, sought to enjoin the

Authority from use of any proceeds of any bonds which it

had on hand, for any purpose, even to pay off prior bonds,

sought to declare all statutes of the State of Michigan as

applied to Plaintiff unconstitutional, sought to enjoin the

Authority from issuing any more bonds or notes, sought

to have a receiver appointed for the Authority, sought to

have the Authority enjoined from participating in any

federal programs, and sought to enjoin the Authority from

any further processing, evaluation, or making of loans for

low or moderate income housing projects or developments

in the State of Michigan.

Notwithstanding this broad spectrum of allegations, the

Authority submits that the true nature of this case may be

ascertained by reviewing the history of litigation between

the parties commenciug in January, 1975. The same sweep-

ing charges were first contained in a counterclaim filed in

response to a complaint filed in Wayne County Circuit

Court for foreclosure of a mortgage previously issued by

4

the Authority to Petitioner Second Avenue Limited Divi-

dend Housing Association (‘‘Second Avenue’’). That

Counterclaim, somewhat enlarged and lengthened, became

the Complaint first filed in the present case, which in turn

became the First Amended Complaint filed by Petitioners

on the very day of the hearing of the Authority’s motions

to dismiss the Complaint.

The Authority’s work includes the important public

function of raising money by the sale of bonds and notes,

which money it uses to make loans to finance the construc-

tion and rehabilitation of housing for persons of low or

moderate income. In pursuance thereof, in 1972 the Au-

thority and Citizens Mortgage Corporation agreed to and

did lend Petitioner Second Avenue $1,798,000.00, taking a

mortgage in return. The Authority filed its Compaint to

foreclose this mortgage on January 28, 1975, in Wayne

County Circuit Court, Civil Action No. 75 054 287. Second

Avenue removed the foreclosure action to the United States

District Court, where it became No. 75-70332, and filed and

served a counterclaim. That Counterclaim was shorter than,

but contained a substantial number of the allegations con-

tained in, the Complaint and First Amended Complaint

which are the subject of this present appeal. The Authority,

beeause of the lack of jurisdiction, promptly sought to

remand the matter to the State Court, filing its Motion to

this effect on April 30, 1975. On May 5, 1975, Second Avenue

filed its Motion to Disqualify the Authority’s counsel, and,

when this motion, together with a request that the entire

proceedings be stayed, was denied from the bench on May

5, 1975, Second Avenue 4iled a Petition for Writ of Man.

damus in the Sixth Cireuit on May 8, 1975, No. 75-1492.

On May 12, 1975, the adjourned date for hearing the Au-

thority’s Motion to Remand, Second Avenue filed an

5

Amended Petition for Removal, and on the same day, the

District Court entered its Order granting the Authority’s

Motion to Remand. Second Avenue appealed to the Sixth

Circuit from the granting of this Order, No. 75-1773. The

Petition for Writ of Mandamus in No. 75-1492 was denied

on July 10, 1975. The appeal from the Order of Remand in

No. 75-1773 resulted in affirmance of the District Court’s

decision, in an Opinion filed by the Sixth Circuit October 1,

1975.

The Complaint in the instant cause was filed on May 1,

1975. On May 15, 1975, the Authority filed its Motion to Dis-

miss the Complaint, together with other motions directed

to the Complaint and to particular portions thereof. The

matter was set for hearing on May 27, 1975. On May 22,

1975, counsel for Second Avenue sought to adjourn the

hearing date on grounds that Second Avenue needed cer-

tain factual discovery. On the same day, the Court entered

its Order limiting the scope of the hearing scheduled for

May 27, 1975, to matters involving only legal issues, On

May 27, 1975, Plaintiffs filed and served their First

Amended complaint and the hearing was held on the Au-

thority’s motions directed to both the Complaint and the

First Amended Complaint. The District Court considered

extended oral argument and entered its Opinion granting

the Authority’s motions to dismiss (App. 3), and on the

same day entered its Judgment of Dismissal (App. 1).

Plaintiffs’ subsequent motions directed toward altering,

amending, and vacating the Judgment were denied by

Orders of the Court dated June 12, 1975, and filed June 13,

1975. (App. 39, 41, 44). Plaintiffs filed a Notice of Appeal

to the Sixth Cireuit on June 26, 1975.

After extensions of time were sought and obtained ‘%r

filing Plaintiffs’ Brief, the Sixth Circuit heard oral argu-

6

ment on April 5, 1976 and issued its per curiam opinion

and judgment on April 8, 1976 (App. 47). A motion for

rehearing, was filed on April 28, 1976 and was denied sum-

marily on May 25, 1976 (App. 49).

On August 19, 1976 Petitioners filed with the Clerk of

this Court a ‘‘Motion for Leave to Proceed in Forma

Pauperis and Motion for Order Dispensing Printing Re-

quirements for Brief, Appendix and All Pleadings and

Papers in the Proceeding in Unprinted Form’’ and, at the

same time, attempted to file a petition for certiorari which

was not in the form required by the rules of this Court.

That Motion was denied by Order of this Court dated

October 4, 1976. The present Petition for a Writ of Cer-

tiorari was filed November 12, 1976 and received by counsel

on November 15, 1976.

ARGUMENT

I.

THIS COURT LACKS JURISDICTION BECAUSE

THE PETITION FOR CERTIORARI WAS NOT

TIMELY FILED.

Petitioners seek review of the opinion and judgment en-

tered by the United State Court of Appeals for the Sixth

Cireuit on April 8, 1976. The petition for certiorari was

docketed in this Court on November 12, 1976. Ninety days

after April 8, 1976 was July 7, 1976.

The Petition makes no attempt at claiming timeliness; it

merely states the dates of the actions of the Sixth Circuit.

Presumably Petitioners will claim that the ninety day per-

iod began anew from the Sixth Circuit’s denial of the peti-

tion for rehearing on May 25, 1976, that the purported peti-

tion filed August 19, 1976 was within that period, and that

7

the pendency before this Court of the motion for leave to

proceed in forma pauperis tolled the further running of the

ninety day period. This claim is not only inconsistent with

the decisions of this Court regarding computation of the

ninety day period,’ but, even if accepted, does not make

the November 12, 1976 petition timely. Ninety days after

May 25, 1976 would have been August 24, 1976. The filing

of the motion and attempted filing of the improper petition

on August 19, 1976 left five days unexpired in this period.

The motion was denied on October 4, 1976 but the present

Petition was not filed until November 12, 1976. Under any

conceivable computation of the ninety day period, the Peti-

tion was not timely.

It has long been established that the time requirements

for a petition for a writ of certiorari to a court of appeals

in a civil action are jurisdictional and that failure to com-

ply with such time requirements precludes consideration of

the petition by this Court.? Hartford Accident € Indemnity

Co. v. Bunn, 285 U.S. 169, 177-78 (1932) ; Gotham Can Co. v.

United States, 281 U.S. 706 (1930) ; Toledo Scale Co. v. Com-

puting Scale Co., 261 U.S. 399, 418 (1923). Consequently, Re-

1Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20

(1952) ; Federal Trade Commission V. Minneapolis-Honeywell Reg-

ulator Co., 344 U.S. 206,211 (1952).

2A different rule may apply in other circumstances: (a) in criminal

petitions for certiorari where the time requirements are established

not by statute but by ony. Court rule which occasionally has

been waived, see, e.g., Dur v. United States, 401 U.S. 481 (1971)

(b) in direct peak or petitions for certiorari to trial courts after

post-trial motions, see, +e United States v. Adams, 383 U.S. 39

(1966) and Rule 4, F.R.A.P.; and (c) in appeals or petitions for

certiorari to the highest court of a state where the local rules

provide that a motion for rehearing operates as an automatic a

oe, 66, Department 1 Ss ge v. Pink, 317 U.S. 264 (1942).

Rules 35(c) and 40, F.R.A.P., and Sixth Circuit Rule 3(b) make

clear that the tion for rehearing did not suspend the finality

of the April 8, 1976 opinion and judgment.

8

spondent Michigan State Housing Development Autority

respectfully submits that the petition for certiorari filed

by Petitioner on November 12, 1976 was not timely, may

not be considered, and should be denied.

Il.

PETITIONERS HAVE SHOWN NO BASIS FOR

GRANTING A WRIT OF CERTIORARI

The Petition raises nothing new. It rehashes the same

tired, vague, conclusory allegation and arguments rejected

on numerous occasions by the two courts below. It cites

precisely the same case authority for the same general con-

clusions about standing, right of action, and antitrust im-

munity. There are no clear, precise issues of importance

presented for this Court’s resolution. Rather, there is the

same broad claim that the actions of the lower courts are

in conflict with nearly every important decision of this

Court in its last two terms. The present petition is merely

the last gasp in a two year struggle to impede foreclosure

of a mortgage by the Authority and do not merit consid-

eration by this Court.

Petitioners attempt to construct some inconsistency be-

tween the decisions in the present case and that of this

Court in Hills v. Gautreaux, U.S. __, 96 S. Ct. 1538 ( April

20, 1976) and the Third Circuit in Shannon v. HUD, 436

F.2d 809 (3rd Cir. 1970). Even a cursory reading of those

cases discloses that the only similarity between them and the

present case is that they involve housing. Neither the factual

nor the legal issues involved are remotely similar.

Petitioners tacitly admit (Pet. 24-5) that Warth v. Seldin,

422 U.S. 490 (1975), decided after the decision of the Dis-

trict Court, is conclusive as to their lack of standing and

merely argue that Warth was wrongly decided.

Finally, Petitioners cite one new case, Cantor v. The De-

troit Edison Company, __ U.S. __, 49 L.Ed.2d 1141 (July 6,

(1976), im an attempt to breathe » life into an antitrust claim

against governmental agencies and officials. Cantor neither

requires nor permits such a conclusion.

The remaining arguments in the Petition are merely di-

rected to the claim that the lower courts incorrectly ap-

plied well accepted legal standards. As such, those argu-

ments present no basis for granting the Petition under

Rule 19. -

No novel or significant legal issues are presented by the

Petition. No conflict among the Circuits or between the

Sixth Circuit and the decisions of this Court are presented.

The only real claim presented is that this Court assist peti- .

tioners’ efforts to delay foreclosure of a mortgage which

has been in default since 1972. The Michigan State Housing

Development Authority respectfully submits that this

Court, like the two courts below, should reject those efforts

which are neither timely nor meritorious.

10

CONCLUSION

The Petition for a writ of certiorari should be denied.

Respectfully submitted,

FRANK J. KELLEY

Attorney General for the State of Michigan

Robert A. Derengoski

Solicitor General

Milton I. Firestone

Assistant Attorney Gener.

Joseph K. Sobkowski

Assistant Attorney General

GREGORY L. CURTNER

Special Assistant Attorney General

Miller, Canfield, Paddock and Stone

2500 Detroit Bank & Trust Building

Detroit, Michigan 48226

Telephone: (313) 963-6420

HERBERT G. SPARROW, ITI

Special Assistant Attorney General

Dickinson, Wright, McKean, Cudlip & Moon

800 First National Building

Detroit, Michigan 48226

Telephone: (313) 223-3654

Dated: December 15, 1976