Petition — Medina v. Rudman

a Ae Sa ee

ee

‘Qansaeeeeeeneen

he set 8

ILED

; SEP 10 1977

IN THE SUPREME COURT OF THE oN FRB es

OCTOBER TERM, 1976

NO. 77-230

GERALDINE C. MEDINA, Petitioner,

Vv.

WARREN B. RUDMAN, DAVID HESS, ROBERT E.

ALLARD, SYDNEY H. FRINK, and SOTERIOS A.

SAGGIOTES, Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

MEMORANDUM FOR THE PETITIONER,

GERALDINE C. MEDINA

LEONARD W. YELSKY,

Counsel for Petitioner

DAVID A. SNOW,

YELSKY, EISEN & SINGER CO., LPA

340 Leader Building,

Cleveland, Ohio 44114

» ie

TABLE OF CONTENTS

Opinion Below - ~ @~ «~ «~ «= «~ « « « « «

Jurisdiction «<«e««. 8 «se ese«e«e«

Questions Presented - - -------

Constitutional Provisions - - - - - -

Statutes «]«<«¢ « « « © « » 6 «© © ¢ @

Ww Ww WwW NY ND WNW

Statement of the Case - -------

Reasons for Granting the Writ - - - - 13

Argument -----+-+-+-+-+-+---- 13

Conclusion -----+-+-+-+-+-+--- 19

Appendix:

Ze Judgment of United States

Court of Appeals for the

First Circuit ----+--+--- A.l

II. Opinion of United States

Court of Appeals for the

First Circuit ----+-+-+- - A.2

III. Memorandum Opinion of the

United States District Court

for the District of New

Hampshire - ----+--+--- - A.14

Medina - -----+---+--+-+--- A.22

V. Excerpt from page two of

District Court Hearing On

:

i

i

:

'

N

~~

All Pending Motions,

December 5, 1975 ------- A.

VI. Amendment 5 - United

States Constitution ----- A.

VII. Amendment 14 - United

States Constitution - ---- A.

VIII. Title 42 U.S.C. 81983 ---- A.

TABLE OF AUTHORITIES

Cases:

Carter v. Stanton, 405 U.S. 669,

92 S.Ct. 1232, 31 L. Ed. 2a 569

(1971) (per curiam) - ------

Homer v. Richmond, 292 F. 2d 719,

ae, Ge, Se) we ew ee @

Hornsby v. Allen, 326 F. 2d 605

(1964) --+--+-+-+-+-+-+-+-+--- 10,

Houghton v. Shafer, 392 U.S. 639,

of: S.Ct. 2119, 20 L. Ed. 2d 1319,

(1968) (per curiam) - - - - - - -

Raper v. Lucey, 488 F. 2d 748

ees a ees oS oo

Schware v. Board of Bar Examiners,

~ 353 U.S. 332 (1957) -------

Wilwording v. Swenson, 404 U.S. 249,

92 S. Ct. 407, 30 L.Ed. 2d 418

(1971) (per curiam) - - -----

37

38

38

38

11

10

11

11

10

10

ll

- iii -

Constitutional Provisions:

Constitution of the United States:

Fifth Amendment -.- --- - - - - 2, 9.

Fourteenth Amendment - - - - - Zz, BD, ae

Statutes:

Federal:

28 U.S.C. 81343 Subdivisions

(1), (2), (3), (4) -----=- 8

28 U.S.C. 82101(C) ------ 2

42 U.S.C. 81983 -------- 2. Gs 2A

42 U.S.C. 81982 -------- 8

42 U.S.C. 81985 - ------- 8

State:

New Hampshire Revised Statutes

Annotated:

Sec. 284:6-a -------- 2. 3

Sec. 284:l2-a ------- - 3

Sec. 284:15-a -------- 2

Sec. 284:15-b -------- » 3,-3

Sec. 284:l6-a -----+--- a

»je«

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 77-230

GERALDINE C. MEDINA, Petitioner,

Ve

WARREN B. RUDMAN, DAVID HESS, ROBERT E.

ALLARD, SYDNEY H. FRINK, and SOTERIOS A.

SAGGIOTES, Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

MEMORANDUM FOR THE PETITIONER,

GERALDINE C. MEDINA

Petitioner, Geraldine C. Medina, re-

spectfully prays that a writ of certiorari

issue to review the judgment of the United

States Court of Appeals for the First Cir-

cuit affirming the judgment of the United

States District Court for the District of

New Hampshire dismissing Plaintiff's Com-

plaint for failure to state a claim upon

which relief can be granted.

“2 «@

OPINION BELOW

The opinion of the United States

Court of Appeals for the First Circuit

(A. 2) is reported at 545 F. 2d 244 (1977).

The opinion of the United States District

Court for the District of New Hampshire

was rendered on January 9, 1976. (A. 14).

JURISDICTION

The Judgment of the United States

Court of Appeals for the First Circuit was

entered on November 19, 1976 (A. 1).

The jurisdiction of this Court is

invoked under Title 28 U.S.C., Section

210l1(c), this being a writ for review of

a judgment of the United States Court of

Appeals in a civil action.

QUESTIONS PRESENTED

THE DISMISSAL OF A COMPLAINT FOR

ALLEGED FAILURE TO STATE A CLAIM IS IM-

PROPER WHERE PLAINTIFF IS SEEKING TO PAR-

TICIPATE IN AN ALREADY OUTSTANDING GREY-

or oe

- 3-

HOUND RACING LICENSE IN THE STATE OF NEW

HAMPSHIRE AND WHERE HER SOLE COMPLAINT IS

THAT SHE HAS BEEN DENIED A DUE PROCESS

HEARING ON HER APPLICATION ALTHOUGH SHE IS

UNQUESTIONABLY QUALIFIED AND HAS MET EVERY

STATUTORY REQUIREMENT.

CONSTITUTIONAL PROVISIONS

FIFTH AMENDMENT, UNITED STATES CON-

STITUTION, AND FOURTEENTH AMENDMENT, UNITED

STATES CONSTITUTION (A. 38).

STATUTES

TITLE 42 USC 81983 (A. 38). N.H.

RSA 284:6-a; 12-a; 15-a; 15-b; 16-a

(A. 24 -_ A. 26).

STATEMENT OF THE CASE

Petitioner, Geraldine C. Medina, an

Ohio resident, sued in the District Court

for the District of New Hampshire, seeking

to restrain Defendants Allard, Frink and

Saggiotes, members of the New Hampshire

Greyhound Racing Commission (the "Commis-

- Ze

sion"), and Defendants, New Hampshire

Attorney General Rudman and Assistant

Attorney General Hess, from denying with-

out a hearing her application to partici-

pate in a peoviously existing greyhound

racing license in the. State. of New Hamp-

shire. Mrs. Medina requested the District

Court (A.37; A.27) to order the Commission

to grant her a hearing on her application

for participation (by purchasing stock in

the licensee) in an outstanding greyhound

racing license that the Commission had

issued to a corporation known as the New

Hampshire Kennel Club, Inc. (the "Club").

On advice of the attorney general of New

Hampshire, the Commission refused to ap-

prove Mrs. Medina "as a financial backer,

owner or participant in any way" under the

Club's license (A. 33).

The State Greyhound Racing Commis-

sion is a three-member body established

a

nS Sh: lt my ei al am

|

|

o @ «

under New Hampshire law NH RSA 284:6-a

(Supp. 1975) (A. 24). No one may conduct,

hold or operate any dog race or public

meet at which parimutuel pools are sold

without a license from the Commission. NH

RSA 284:12-a (Supp. 1975) (A. 24). If the

Commission is satisfied that all provi-

sions of law and its rules and regulations

have been and will be complied with, it

may issue a license, NH RSA 284:1l6-a

(Supp. 1975) (A. 26). t

Applicants for dog racing licenses,

holders of such licenses, and individuals

owning interests in closely-held licensee

corporations, must file with the state

Attorney General sworn statements disclos-

ing their names, occupations and addresses,

the nature of their ownership interest in

the license, information as to any felony

convictions, and a detailed statement of

assets and liabilities. NH RSA 284:15-b

- 6 -

(Supp. 1975) (A. 25). New Hampshire law

makes no explicit provision for a prospec-

tive purchaser of stock in an existing

licensee like Mrs. Medina to file such a

statement with the Attorney General as was

done here, nor does the law expressly pro-

hibit one who has not received Commission

approval from purchasing stock.

The events surrounding Petitioner's

Claim are as follows. Petitioner, an Ohio

resident, is the principal shareholder of

four Weight Watcher franchises there. In

the first half of 1975 she loaned $150,000

to the Club, which owned the New Hampshire

real estate upon which a greyhound racing

track was then in process of being built.

A license to conduct greyhound races

during the 1975 season had already been

issued to the Club. After Petitioner's

initial loan, the Club's two principal

stockholders, Henry D. Bogatin, Jr. and

-J-«

Angelo Cassaro, assured Petitioner that

they would sell her an approximately fifty

per cent interest in the Club, but their

undertaking to do so was explicitly made

contingent upon her obtaining approval

from the Commission. Pursuant to this in-

formal understanding “in principle", but

before she had obtained the Commission's

approval, Mrs. Medina loaned more money

to the Club, making her investment in the

neighborhood of $700,000.

In August, 1975, Mrs. Medina, with

the assistance of an attorney, made out

and submitted to the Attorney General a

form entitled "Individual Disclosure of

Information", this being what Mrs. Medina

calls in her complaint "an application to

participate in the previously issued

[Club's] Greyhound Racing license". The

form on its face provided that it was "To

be submitted to Attorney General under

- 8 -

RSA 284:15-b" and "Must be filed by each

individual . .. holding legal or benefi-

cial ownership interest if the ownership

interest of the above applicant or license

holder is held by 25 or less persons . ."

On this form, Mrs. Medina indicated

the Club as the "present license holder",

and that she was presently a mortgagee of

the Club which was indebted to her for

$700,000. After detailing her financial

condition, she went on to indicate that if

approved by the Commission she hoped to

participate through a limited partnership

arrangement, and through stock ownership

in the Club, which would be the General

Partner, in the operation of a greyhound

racing facility. Stock ownership in the

Club "presently anticipated" was said to

be as follows:

VOTING COMMON

Henry D. Bogatin, Jr. 200 shares

Angelo Cassaro 200 shares

Geraldine Medina 300 shares

— 2

NON VOTING COMMON

Geraldine C. Medina 300 shares

Petitioner expressly noted that “voting

control would remain in the hands of the

present stockholders of the present

licensee", viz. Bogatin and Cassaro.

There is no suggestion that Peti-

tioner ever intended personally to secure

a license. Moreover, since the existing

stockholders, Bogatin and Cassaro, were

to retain over 50% of the voting stock,

the license issued to the Club would not

"automatically cease" under the provisions

of NH RSA 284:16-a, upon Mrs. Medina's

acquisition of stock (A. 26).

The Court of Appeals, in according

Mrs. Medina the status of a license appli-

cant (A. 5), Opinion of the Court of

Appeals, Page 4, Footnote 3), was in error.

In part this is due to the fact that the

New Hampshire statutes do not adequately

- 10 -

provide how applications like that of the

Petitioner's fit in the regulations of

licensing procedures.

Following submission of the appli-

cation, the state Attorney General con-

ducted an investigation and, on September

26, 1975, the Commission wrote to the Club

that "[b]ased upon a report from the office

of the Attorney General, the Commission

declines to approve Geraldine C. Medina

as a financial backer, owner or partici-

pant in any way under the license granted

to the New Hampshire Kennel Club." (A. 33).

Twelve days later, on October 7, 1975,

Mrs. Medina filed an action in the district

court, seeking initially a temporary re-

straining order and preliminary injunction

ordering defendants to allow her to parti-

cipate under the Club's license.

Petitioner alleged in Paragraph Eight

of her Complaint (A. 27) that the "provi-

Tso eee PO ae ar

oy

- ll -

sions of the New Hampshire Revised Statutes

Annotated fail to provide Plaintiff with

adequate notice and hearing on the merits

of a controversy between herself and the

unknown contents of the report prepared by

Defendants, Warren B. Rudman and David

Hess. Said deprivation constitutes a

denial of due process of law as set forth

in the Constitution of the United States."

At the December 5, 1975, hearing on Defen-

dants motions for dismissal and for sum-

mary judgment, Petitioner clarified the

relief she was seeking (A. 37):

"'The Court: What do you mean

by further equitable relief?

""'"Mr. Yelsky: Well, all right.

This is exactly what I mean.

We have very carefully brought

to the Court's attention that

this woman has never been given

a hearing or notice or an ex-

’ planation of why she has not

pair. ~~been licensed, although we feel

that she has complied in every

way with the State law and that

she should be licensed.

"'The Court: All right. Are

- 12 - -13-

you asking that she be given a (1), (2), (3) and (4), providing for orig-

hearing? |

| inal jurisdiction in suits authorized by

""Mr. Yelsky: That is the fur-

man equitable relief, Your 42 U.S.C. 81982, 81983 and 81985.

onor.'"

; ; The Court of Appeals affirmed the

Finally, in her district court com- .

; district court's dismissal of the Peti-

plaint, at Paragraph 15, Petitioner alleged

tioner's Complaint. It is these adverse

that "subsequent to plaintiff's application

decisions from which relief is sought here.

to be licensed to participate in said Club

REASONS FOR GRANTING THE WRIT

license" the Attorney General conducted

" , The First Circuit has decided an im-

some type of investigation" in which she

portant question of federal law in a man-

cooperated; and that although the results

| ner which conflicts with important deci-

of the investigation were kept secret from

sions of other circuits.

her, she believed this to be the basis for

ARGUMENT

turning her down. She alleged that "she

; THE DISMISSAL OF A COMPLAINT FOR ALLEGED

has a reputation unblemished in any way"

, ; FAILURE TO STATE A CLAIM IS IMPROPER WHERE

and complies with "any of the standards

’ PLAINTIFF IS SEEKING TO PARTICIPATE IN AN

as set forth in New Hampshire Revised Sta-

ALREADY OUTSTANDING GREYHOUND RACING LICENSE

tutes Annotated, Chapter 284 and all re-

; IN THE STATE OF NEW HAMPSHIRE AND WHERE HER

lated sections thereto." (A. 28; A. 29,

SOLE COMPLAINT IS THAT SHE HAS BEEN DENIED

para. 16). |

: } A DUE PROCESS HEARING ON HER APPLICATION

Jurisdiction in the District Court

ALTHOUGH SHE IS UNQUESTIONABLY QUALIFIED

was based on 28 U.S.C. 81343 Subdivisions

=» 14 -

AND HAS MET EVERY STATUTORY REQUIREMENT.

The action of the Greyhound Racing

Commission in arbitrarily and without hear-

ing denying Petitioner the opportunity to

participate in a dog racing license in the

State of New Hampshire, ‘subsequent to her

being offered a limited partnership and

substantial equity in the New Hampshire Ken-

nel Club violated her right to due process

under the Fifth and Fourteenth Amendments

to the United States Constitution. The

guise for this action was the administra-

tive application of certain statutes which

are constitutionally lacking. These

statutes no where provide for fair hearing

for an applicant such as Petitioner (A.26).

In her Complaint, Petitioner stated

that she had invested an approximate Seven

Hundred Thousand Dollars ($700,000.00) in

the already licensed New Hampshire Kennel

Club; that said money was essential to the

FEN e rem

PEO 8 PP ee a.

>

ers a ae

- 15 -

continued operation of said business and

that without it the continued existence of

the Club and existing license would be

jeopardized; the track subjected to fore-

closure; and, Petitioner's loan endangered.

(A. 29).

As the District Court pointed out

(A.19), Memorandum Opinion), the denial of

those privileges of which Petitioner com-

plains, "the right to earn a living and

the right to engage in the occupation of

one's choice" are within "the range of

protectible interests" of the Fourteenth

Amendment. Schware v. Board of Bar

Examiners, 353 US 332 (1957). However,

the District Court's conclusion that she

"does not seek nor is she being prevented

from either earning a living or engaging

in a chosen occupation" is without sub-

stance.

Applicants for licenses have been

- 16 -

found to have protectable interests even

though the claimants are mere applicants.

In Raper v. Lucey, 488 F. 2d 748 (1973),

the First Circuit: found that a driver's

license applicant has a protected liberty

interest in the "freedom to make use of

one's own property, here a motor vehicle."

In Hornsby v. Allen, 326 F. 2d 605

(1964), the Fifth Circuit found that an

applicant for a liquor license is entitled

to due process.

In Homer v. Richmond, 292 F. 2d 719

(D.C. Cir. 1961), in which radio telegraph

operators had unsuccessfully sought licenses

made necessary by a newly enacted statute,

the Circuit Court found that once an opera-

tor meets the statutory criteria, he is

entitled to a due process hearing to meet

charges of unsuitability.

The lower court's distinguishing of

Petitioner's situation from those in the

ee eee sere

- errr &

- 17 -

cases above cited on the basis that those

cases involve broadly shared privileges

is nonsense. All involve the right to

pursue a chosen career. The liquor situa-

tion in Hornsby v. Allen, supra, is no

less a social problem than dog racing is

made out to be in the lower courts and is

no less a subject of the state's police

power.

Petitioner's means have no bearing

in this situation. Doubtless, her means

do not diminish her due process rights.

The decision of the District Court

gives the Commission unbridled discretion

in choosing who they want to be licensed.

Such a situation is repleat with the poten-

tial for abuse.

Finally, there can be no dismissal

for failure to exhaust available state

remedies. The available administrative

procedures would probably not have re-

- 18 -

sponded to Petitioner's demand for pro-

cedural due process in that she never had

a hearing from the start. Moreover, a

series of recent Supreme Court decisions,

Carter v. Stanton, 405 U.S. 669, 92 S:. Ct.

1232, 31 L. Ed. 2d 569 (1971) (Per curiam);

Wilwording v. Bwenson, 404 U.S. 249, 92

S. Ct. 407, 30 L. Ed. 2d 418 (1971) (per

curiam); Houghton v. Shafer, 392 U.S. 639,

88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968)

(per curiam); have led many lower federal

courts to conclude that such a require-

ment is no longer necessary in §1983 cases.

Reg?

al

- 19 -

CONCLUSION

Based on all of the foregoing argu-

ments, Petitioner, Geraldine C. Medina,

respectfully requests that her Petition be

granted.

Respectfully submitted,

LEONARD W. YELSKY

DAVID A. SNOW

Attorneys for Petitioner

OF COUNSEL:

YELSKY, EISEN & SINGER CO., L.P.A.

340 Leader Building

Cleveland, Ohio 44114

(216) 781-2550

APPENDIX

SR GR PRE I CY ES OS RITTER TENN at EE a NEN” NN MENA HORROR py Ter

eed

~

A.l

I. JUDGMENT OF UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 76-1057.

GERALDINE C. MEDINA,

Plaintiff, Appellant,

Vv.

WARREN B. RUDMAN ET AL.,

Defendants, Appellees.

JUDGMENT

Entered November 19, 1976

This cause came on to be heard on

appeal from the United States District

Court for the District of New Hampshire,

and was argued by counsel.

Upon consideration whereof, It is now

here ordered, adjudged and decreed as

follows: The judgment of the District

Court is affirmed.

/s/ Dana H. Gellup

[cc: Messrs. Yelsky and Souter. ] Clerk

A.2

II. OPINION OF UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

United States Court of Appeals

for the First Circuit

No. 76-1057

GERALDINE C. MEDINA, °

PuarmTirr, APPELLANT, °

v.

WARREN B. RUDMAN, ET AL.,

Derexpants, APPELLEES,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Hucs H. Bownes, U.S. District Judge]

Before Corrin, Chief Judge,

McExree and CampsetL, Circuit Judges.

Leonard W. Yelsky, with whom David A. Snow and Yelsky, Eisen ¢ Singer

Co., L.P.A. were on brief, for appellant.

David H. Souter, Attorney General, with whom Thomas D. Bath, Depnty At-

torney General, and James C. Sargent, Jr., Attorney, were on brief, for .

appellees.

November 19, 1976

CampsELL, Circuit Judge. Geraldine C. Medina appeals

from a judgment of the District Court for the District of

New Hampshire dismissing her complaint for damages

and an injunction against the members of New Hamp-

shire’s State Greyhound Racing Commission (the ‘‘Com-

PRE meee —

MEDINA V. RUDMAN

mission’’)' and its Attorney General. Citing 42 U.S.C.

§§ 1982, 1983, 1984, and 1985, Mrs. Medina requested the

district court to order the Commission to approve her

‘*participation’’ (by purchasing stock in the licensee) in

an outstanding greyhound racing license that the Commis-

sion had issued to a corporation known as the New Hamp-

shire Kennel Club, Inc. (the ‘‘Club’’). Her complaint fol-

lowed upon the Commission’s refusal, on advice of the

Attorney General of New Hampshire, to approve her ‘‘as

a financial backer, owner or participant in any way’’ under

the Club’s license.?

While Mrs. Medina’s complaint cited several civil rights

statutes, and included an unsuccessful request for a three-

judge court to consider the alleged unconstitutionality of

parts of New Hampshire’s greyhound racing laws, this

appeal is limited to the district court’s determination that

her complaint did not state a claim under 42 U.S.C. § 1983.

Mrs. Medina contends chiefly that the Commission’s dis-

approval of her participation without, as she asserts, ‘‘ade-

quate notice and hearing on the merits of a controversy

between herself and the unknown contents of the [Attorney

General’s] report’’, deprived her of due process of law

under the fourteenth amendment, giving rise to a right of

action under § 1983. The court below ruled that her in-

1 The State Greyhound Racing Commission is a three-member body estab-

lished under New Hampshire law NH RSA 284:6-a (Supp. 1975). No one

may conduct, hold or operate any dog race or public mect at which parimutuel

pools are sold without a license from the Commission. NH RSA 284:12-n

(Supp. 1975). If the Commission is satisfied that all provisions of law and

its rules and regulations have been and will be complied with, it may issue a

license, NH RSA 284:16-a (Supp. 1975). [Emphasis supplied.

3 Applicants for dog racing licenses, holders of such licenses, and individuals

owning interests in closely-held licensee corporations, must file with the state

Attorney General sworn statements disclosing their names, occupations and

addresses, the nature of their ownership intcrest in the licensee, information

as to any felony convictions, and a aes statement of nssots and linbilitics.

NH RSA 284:15-b (Supp. = New Har shire law makes no explicit pro-

vision for a prospec arch: y

A.4

OPINION OF THE COURT

terest in acquiring stock in a parimutuel greyhound race-

track was not protected liberty or property within the four-

teenth amendment. ;

Before proceeding, we observe that the court below

should either have treated defendants’ motion to dismiss

under Fed. R. Civ. P. 12(b)(6) as one for summary judg-

ment, or else not given specific consideration, as it did in

its opinion, to a number of facts outside the pleading, found

principally in affidavits filed by the parties. See Fed. R.

Civ. P. 12(b). O’Brien v. DiGrazia, No. 76-1292 (1st Cir.

Nov. 8, 1976). Rule 12(b) provides that if ‘‘matters out-

side the pleading are presented to and nat excluded by the

court, the motion shall be treated as one for summary

judgment.’’ (The court had before it a separate motion

for summary judgment that was argued simultancously

with the 12(b)(6) motion but chose to act under the latter.)

The court’s error was, however, harmless. The dismissal

can be justified without reference to the extrinsic material

which, while relevant, is not determinative. Cf. O’Brien

v. Moriarty, 489 F.2d 941 (1st Cir. 1974).

The events surrounding plaintiff’s claim are clear

enough. An Ohio resident, plaintiff is the principal share-

holder of four Weight Watcher franchises there, and ap-

pears to possess substantial means. In the first half of

1975 she loaned $150,000 ta the Club, which owned the New

IIlampshire real estate upon which a greyhound racing

track was then in process of being built. A license to con-

duct greyhound races during the 1975 season had already

been issued to the Club. After plaintiff’s initial loan, the

Club’s two principal stockholders, Henry D. Bogatin, Jr.

and Angelo Cassaro, assured plaintiff that, in view of her

substantial financial position, they would sell her an ap-

proximately fifty per cent interest in the Club, but their

undertaking to do so was explicitly made contingent upon_

TRI LN ye 8 LT IT RR AREY Rem aretrrrene

——— eee ~ ee

~~“present_li

co PEL TT ee IE ST OR TINY NTE Rt OS EET fy MOORE CT

——s

A.5

MEDINA V. RUDMAN

her obtaining approval from the Commission. Pursuant

to this informal understanding ‘‘in principle’’, but before .

she had obtained the Commission’s approval, Mrs. Medina

loaned more money, to the Club, making her investment in

the neighborhood of $700,000.

In August, 1975, Mrs. Medina, with the assistance of an

attorney, made out and submitted to the Attorney General

a form entitled ‘‘Individual Disclosure of Information’’,

this being what Mrs. Medina calls in her complaint ‘‘an

application to participate in the previously issued [Club’s]

Greyhound Racing license’. The form on its face pro-

vided that it was ‘‘To be submitted to Attorney General

under RSA _284:15-b’’ and ‘‘Must be filed by each indi-

vidual . . . holding legal or beneficial ownership interest

if the ownership interest of the above applicant or license

holder is held by 25 or less persons... .’’*

On this form, Mrs. Medina indicated the Club as the

holder’’, and that she was presently a

mortgagee of the Club which was indebted to her for

$700,000. After detailing her finencial condition, she went

on to indicate that if approved by the Commission she

hoped to participate through a limited partnership ar-

rangement, and through stock ownership in the Club,

which would be the General Partner, in the operation of a

2 The distriet court spoke of Mrs. Medina as an applicant for a racetrack

license. Clearly, as the court acknowledged, this was not technically correct os

there is no su nally to secure a lic

Moreover, since the existing stockholders, Bogatin and Cassaro, were to retain

over 50% of the voting stock, the license issued to the Club would seem not

’ te ‘*dutomatically cease’’ under the provisions of NH RSA 284:16-a, upon

Nre. Medina’s acquisition of stock, as the district court assumed.

On the other hand, calling Mrs. Medina a license applicant is, as a practical

matter, not too far off the mark. The Club’s license was subject to annual

renewul aud could be revoked at any time by the Commission (though only

‘*for cause upon reasonab! i ing’’, NH RSA 284:16-a); and

it appears if Mra. ina persisted in acquiring stock without Commission

approval, its license would be ia jeopardy under existing Commission licy

and practice, For pur of this case, we are willing to accord Mre. Medina

the most favored siatus supported by the pleadings, that of a license-appli-

particularly where the pleadings do not indicate how applications like

rs fit im the regulations of regular licensing procedures.

~~» forded -Mrs.’ Medina ‘no

OPINION OF THE COURT

greyhound racing facility. Stock ownership in the Club

‘presently anticipated”’ was said to be as follows:

‘ VOTING COMMON

Henry D. Bogatin, Jr. ° 200 shares

Angelo Cassaro 200 shares

Geraldine Medina - 800 shares

NON VOTING COMMON

Geraldine C. Medina . 300 shares

Plaintiff expressly noted that ‘‘voting control would re-

main in the hands of the present stockholders of the pres-

ent licensee’’, viz. Bogatin and Cassaro.

~ Following submission of the so-called application, the

state Attorney General conducted an investigation and, on

September 26, 1975, the Commission wrote to the Club

that ‘‘[b]ased upon a report from the office of the Attorney

General, the Commission declines to approve Geraldine C. .

Medina as a financial backer, owner or participant in any ‘

way under the license granted to the New Hampshire Ken-

nel Club.’’ There is no allegation or evidence that Mrs.

Medina at this juncture ever requested a Commission hear-

ing.* But twelve days later, on Oc'o‘er 7, 1975, she filed this

action in the district court, seeking initially a temporary

restraining order and preliminary injunction, which the

court denied, ordering defendants to allow her to par-

ticipate under the Club’s license. .

4As we agreo with the district court that the fourteenth amendment af-

to a hearing, we need not consider the effect

of her failure to allege such a request.

5 Neither in the prayers of her complaint nor in her request for preliminary

relief, did Mrs. Medina make specific request for the ‘‘process’’, i.e. notice.

of charges and opportunity for hearing, the omission of which allegedly con-

stituted a denjal_of due process of luw. In argument to the district court, her

attorney finally came round to stating that, as alternate relicf, she wished a

hearing and disclosure of the basis on which the Attorney Genera) disnpproved

her and the court said it considcred this a motion to amend and allowed it.

ORE CNRS IR TR ORL E OE RE ee RTT ARR aR PIN OR ORION PENS ES

al "

MEDINA V. RUDMAN

In her district court complaint, plaintiff alleged that

‘subsequent to. plaintiff’s application ‘to be licensed to

participate in said Club license’’ the Attorney General

’. conducted ‘‘some type of investigation’’ in which she co-

operated; and that although the results of the investiga-

tion were kept secret from her, she believed this to be the

basis for turning her down. She alleged that ‘‘she has a

reputation- unblemished in any way’’ and complies with

‘fany of the standards as set forth in New Hampshire Re-

vised Statutes Annotated, Chapter 284 and all related sec-

tions thereto.”’ Plaintiff further alleged, in conclusory

fashion, that defendants acted willfully, knowingly and

improperly with the specific intent to deprive her of her

constitutional rights, and that they conspired and acted

arbitrarily, in abuse of their discretion.

In deciding whether Mrs. Medina had a claim cognizable

under § 1983, the court below assumed that the only fed-

eral right-that might arguably have been denied her by

New Hampshire officials, under color of state law, was a

right to due process.* The court focused on that question,

rightly we think. There was clearly no issue of contract

impairment under Art. I, § 10 of the Constitution, New

»- Hampshire’s greyhound racing laws being fully extant

before she loaned money to the Club, South Terminal Corp.

v. EPA, 504 F.2d 646, 680 (1st Cir. 1974); nor is there any

equal protection issue, there being insufficient facts al-

leged to indicate a ‘‘purposeful discrimination’’ by state

officials: : Snowden v. Hughes, 321 U.S. 1.(1944); see Cor-

deco Development Corp. v. Santiago Vasquez, Nos. 75-1424,

1457, slip op. 7, n.5 (1st Cir. June 25, 1976); Burt v. City

of New York, 156 F.2d 791 (2d Cir. 1946) (Hand, J.).

The district court’s due process analysis closely relied

- *upon that in Board of Regents v. Roth, 408 U.S. 564 (1972),

in which the Supreme Court said,

@**(NJor shall any State deprive any person of life, liberty, or property,

without due process of law; ...’’ U.S. Const. amend. XIV, § 1.

‘BEST COPY AVAILABLE

OPINION OF THE COURT

‘“‘The requirements of procedural due process apply

only to the deprivation of interests encompassed by

the Fourteenth Amendment’s protection of liberty

and property .... [T]he range of interests pro-

tected by procedural due process-is not infinite.’’. Jd.

at 569-70.

The court went on to quote from Roth that to have a

protected property interest in a benefit, a person must

have more than an ‘‘abstract need or desire’’. Property

interests |

“fare created and their dimensions are defined by

existing rules or understandings that stem from an

independent source such as state law — rules or un-

derstandings that secure certain benefits and that sup-

ports claims of entitlement to those benefits.’’ Jd. at

577.

The court found that Mrs. Medina lacked any such prop-

erty interest here ‘cognizable under state law, rules,

custom, or understanding. State law does not create any

property interest in racetrack license applicants; the law

is expressly permissive.... Neither can plaintiff claim

any ‘understanding’. In her contractual dealings with

the Kennel Club, she expressly acknowledged the statu-

tory necessity of obtaining a license in order to partic-

ipate in the operation of the racetrack.’’

The district court rejected any notion that Mrs. Medi-

_na’s application involved a ‘‘fundamental’’ or ‘‘natural’’

right — such as the right to earn a living and engage

-in one’s chosen occupation — which might, apart from

state law, be a protected ‘‘liberty”’ interest. See Schware

v. Board of Bar Examiners, 353 U.S. 232 (1957); Meyer

v. Nebraska, 262 U.S. 390, 399 (1923). Finally it distin-

guished various license cases, including Raper v. Lucey,

PING ere

.

tte

A.9

MEDINA V. RUDMAN

488 F.2d 748 (lst Cir. 1973) (driver’s license), on the

ground that they involved: broadly-shared privileges es-

sential in the pursuit of a livelihood. The court accord-

ingly ruled that the guarantees of the due process clause

were simply inapplicable and that, as a comeoqnenas, plain-

tiff had no claim under § 1983.

We agree with the district court. While the great va-

riety and range of protected liberty and property inter-

ests make them difficult to classify, we accept the lower

court’s thesis that a person’s interest in participating in

the ownership of a parimutuel greyhound racetrack is

neither a right recognized under New Hampshire law nor

is it a ‘‘fundamental’’ or ‘‘natural’’ right.

In the recent term, after the district court’s decision

in the present case, the Supreme Court has come down

with several decisions reiterating and narrowing the Roth

formulation. Paul v. Davis, 424 U.S. 693 (1976); see

Meachum v. Fano, 44 U.S.L.W. 5053 (June 25, 1976);

Bishop v. Wood, 44 U.S.L.W. 4820 (June 10, 1976). See

also Kelley v. Johnson, 425 U.S. 238 (1976). While the

Supreme Court in these cases recognized in passing the

existence of a class of ‘‘fundamental’’ liberties (said to

trigger ‘‘substantive’’ rather than merely ‘‘procedural’’

protection, see Kelley v. Johnson, supra, at 244; Paul v.

Davis, supra, at 710 n.5, 712-13), the Court defined this

class rather narrowly,’ reserving particular emphasis for

those ‘‘liberty’’ or ‘‘property’’ ,interests which attain

status as such under the due process clause ‘‘by virtue of

the fact that they have been initially recognized and pro-

tected by state law’’. Paul v. Davis, supra, at 710. The Court

7 See dissenting opinions in Paul v. Davis, 424 U.8. 693, 714 (1976)

(Brennan, J.); Meachum v. Fano, 44 US.L.W. 5053, 5058 (Stevens,

J.). The **fundamental’’ liberties acknowledged by the Court were chiefly

those having to do with pn procreation, contraception, family relation-

vorghips and child rearing and education. Pawl-v, Davis, sapra, at 712-33. The

Court has, of course, also acknowledged the rights created by other provi-

sions of the Constitution. Jd. ut 710 a5.

A.10

OPINION OF THE COURT

said it is the alteration or extinguishing of a right or status

previously recognized by state law that invokes the pro-

cedural guarantees contained in the due process clause.

Id. at 711.

-Under this approach, it is difficult to see how New

Hampshire law can be said to recognize or create a vested

right or status in favor of potential greyhound license

applicants which defendants here are taking away. Doubt-

less ‘once a ‘licefisé, or the equivalent, is granted, a right

or status recognized under state law would come into be-

ing, and the revocation of the license would require no-

tice and hearing as, indeed, New Hampshire law now

provides. See Paul v. Davis, supra, at 710-11; Bell v.

' “Burson, 402 U.S. 535 (1971). But nothing has so far

«= Ba cae «= a ~-

been promised or granted by the state to Mrs. Medina.

A state-recognized interest might also exist if the New

Hampshire racing law could be said to confer upon Mrs.

Medina a right, upon equal terms with others generally,

~ “to be licéhsed"s6"as to engage in a common activity or

pursuit. In distinguishing Wisconsin v. Constantineau,

400 U.S. 433 (1971), the Paul Court said that ‘‘the right

to purchase or obtain liquor in common with the rest of

the citizenry’’ was a right held under state law. Paul v.

Davis, supra, at 708; and it seems likely that when a state

holds out a right to citizens to engage in an activity on equal

terms with others, a state-recognized status exists, The case

of Schware v. Board of Bar Examiners, 353 U.S. 232

(1957), finding a right of due process with respect to

bar adriissiofis,“tin be explained on such a ground fas

well as on the ground that the right to pursue an ordinary

occupation is, by itself, a ‘‘fundamental’’ liberty inter-

est, infra). This circuit has held that obtaining a driver’s

license is subject to due process protection, Raper v.

' Licey; 488° F.24°748 (1st Cir: 1973), and the same ‘has

A.1l

MEDINA V. RUDMAN

been held in another circuit with respect to a radio oper-

ator’s license. Homer v. Richmond, 292 F.2d 719 (D.C.

Cir. 1961). In these cases, the government recognized

an.entitlement in favor of all persons, or of a class, upon

terms and conditions of general application.

But racing licenses have not been viewed by the New

Hampshire courts as open to all persons who meet pre-

scribed standards. Rather they are treated as discretion-

ary with the racing Commission. The statute says only

that the Commission ‘‘may’’ issue a license if satisfied

that all provisions of law and its rules and regulations

have been and will be complied withh NH RSA 284: 16-a

(Supp. 1975). Referring to a horse racing license, the

New Hampshire Supreme Court has rejected a claim that

once an applicant complies with the statutes and mects

all requirements, the commission had no discretion to with-

hold a license. North Hampton Racing ¢ Breeding Assoc.

v. New Hampshire Racing Commission, 94 N.H. 156 (1946).

- The court éxplained that the state horse racing statute,

on which the greyhound racing laws are patterned

‘‘deals with a private enterprise which, of its na-

ture, is not only privileged, but which presents a so-

cial problem properly coming under the exercise and

jurisdiction of the police power of the State and

which requires strict regulation and supervision.’’ Jd.

at 159.

In Ratti v. Hinsdale Raceway, 109 N.H. 270, 272 (1969),

~ “the’ edu¥t said that racetracks were permitted ‘by the state

to raise revenue, and that regulation allowed tracks to

be run by private parties while guarding against ‘‘what-

ever social evils may be involved.’’

We think that New Hampshire, in-its greyhound li-

~ “Génsing Taws, rather than creating a general entitlement

A.12

OPINION OF TIIE COURT

in favor of all persows who qualify, has indicated merely

that the Commission may issue licenses ‘‘at will’. Cf.

Bishop v. Wood, supra; Board of Regents v. Roth, supra.

We conclude, therefore, that Mrs, Medina’s desire to par-

ticipate in the ownership of a greyhound parimutuel track

did not enjoy, either explicitly or implicitly, a protected

status under New Hampshire law, and was not on that

theory, a ‘‘liberty’’ or ‘‘property’’ interest.

Not being state-created, any asserted ‘‘right’’ to par-

ticipate in the racetrack comes under the due process

clause only if it is a right so ‘‘fundamental” as to elicit

protection even though not otherwise defined in state law.

Rights of this potency are a special breed, sce note 7,

supra, and we find little authority for so classifying Mrs.

Medina’s wishes. Over fifty years ago, in Meyer v. Ne-

braska, 262 U.S. 390, 399 (1923) the Supreme Court de-

scribed the right ‘‘to engage in any of the common occu-

pations of life’? as one of the fundamental privileges

‘long recognized’ at common law as essential to the or-

derly pursuit of happiness by free men.”? See Schware

v. Board of Bar Examiners, supra. Meyer has recently

appeared mostly in dissenting opinions; but even as-

suming its continued vitality, we do not consider race-

track ownership to be one of life’s ‘‘common occupations’’.

Gambling is traditionally suspect in our society, and in-

vestment in such an enterprise, when permitted at all, is

plainly open to the strictest kind of supervision.

We think the state, under its police powers, is entitled,

if it elects, to issue racetrack licenses, and to regulate

participation thereunder, on a discretionary basis ns it

‘ has chosen to do here.* Given the social evils associated

8 While vesting discretionary powers in a state commission may open the

way to abuse, a state may reasonably believe that discretionary contro) makes

it easier to see that licenses do not fall into the wrong hands and that only

porsons who will act affirmatively in the public interest obtain licenses. Cf.

Kelley v. aaa, Ca at 247. New Hampshire law does provide a remed

by which an agg party may appeal to the state courts to challenge Com-

mission decisions deemed arbitrary. NII RSA 284:13 (Supp. 1975).

MEDINA V. RUDMAN —

with gambling and the state’s revenue interests, the statc’s

choice of means in the selection of licensees is entitled

to prevail over the private interests of potential investors.

We do not decide if and to what extent a similar analysis

would stand up if applied to another type of enterprise.

Cf. South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th

Cir.) cert. denied 419 U.S. 837 (1974); Atlanta Bowling

Center, Inc. v. Allen, 389 F.2d 713 (5th Cir. 1968) ; Hornsby

v. Allen, 326 F.2d 605 (5th Cir. 1963).

Affirmed.

Adm. Office, U. 8. Courts — Addison C. Getchell, Inc. Legal Printers Boston

A.14

III. MEMORANDUM OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Geraldine C. Medina

v.

Warren B. Rudman, Civil Action No. 75-297

David Hess,

Robert E. Allard,

Sydney H. Frink, and

Soterios A. Saggiotes

MEMORANDUM OPINION

Plaintiff has brought suit against the New Hampshire Grey-

hound Racing Commission, the New Hampshire Attorney Gen-

eral and one of his assistants alleging violations of 42 U.S.C.

§§ 1982, 1983, 1984 and 1985. She further claims that NH RSA

284:6-a, 12-a, 15-a, 15-b and 16-a have been unconstitutionally

applied as to her; she seeks the convening of a Three-Judge

Court to declare the application of these statutes unconstitu-

tional and to enjoin enforcement of them.

She complains that the New Hampshire Greyhound Racing

Commission has refused, without a hearing or statement of rea-

sons, to approve her participation in any way in a license previ-

ously granted to others for the operation of a Greyhound race

‘track. She alleges that such refusal contravenes her constitutional

right under the Fourteenth Amendment to a due process hearing

and that, as a consequence, she has been deprived of her consti-

tutional rights to earn a living, to purchase and hold real and

personal property, and to enter into contracts. Plaintiff further

A.15

alleges that defendants conspired together to deny her these

constitutional rights.

Jurisdiction is claimed under 28 U.S.C. § 1343.

Plaintiff is a resident of Ohio and the franchise holder of

Weight Watchers, Inc., for approximately fifteen counties in

that state. Her annual income is approximately $450,000.

(Plaintiff's Afidavit at i.)

Defendants Robert Allard, Sydney H. Frink, and Soterios A.

Sagaiotes are the duly appointed members of the New Hamp-

shire Greyhound Racing Commission. As such, they are em-

powered to license all persons, associations, and corporations

which wish to conduct Greyhound racing in the State of New

Hampshire. NH RSA 284:12-a (Supp. 1975) ; NH RSA 284:16-a

(Supp. 1975).

Defendant Warren B. Rudman is the Attorney General of

the State of New Hampshire, and defendant David Hess was, at

all times pertinent to this action, one of his assistants. Rudman

is the chief law enforcement officer of New Hampshire, and, as

such, he routinely cooperates with the New Hampshire Grey-

hound Racing Commission in conducting in-depth investiga-

tions of license applicants. (Rudman Affidavit, Oct. 16, 1975, at

1.) Defendant Hess conducted the investigation into the per-

sonal and business background of plaintiff. (Hess Affidavit, Oct.

17, 1975, at 1.)

Plaintiff initially sought a preliminary injunction ordering

defendants to issue her a Greyhound racing license. This was

denied after a hearing. Defendants, jointly and severally, have

moved for dismissal of the action under F.R.C.P. 12 (b) (6) or,

in the alternative, for summary judgment. Plaintiff has moved to

compel discovery. I find defendants’ motion to dismiss disposi-

tive and do not reach the other motions.

Plaintiff alleges that in the spring of 1975, she entered into a

contract with the two principal shareholders of the New Hamp-

shire Kennel Club, a duly licensed Greyhound race track opera-

tor, and, as a business investment, Joaned $700,000 to the Kennel

Club. She claims that “it would be advantageous for [her] to

invest in this business as it would concern a real estate invest-

ment which would provide a legal tax shelter for [her] large

A.16

income.” (Plaintiff's Affidavit at i.) The two principal share-

holders in the Kennel Club agreed to sell to plaintiff an approxi-

mate fifty percent interest in the Club provided that she was

approved as a licensee by the New Hampshire Greyhound

Racing Commission. (Complaint § 11 at 7.)

In August, 1975, plaintiff filed an application with the Racing

Commission. Pursuant to its custom, the Commission submitted

plaintiff's name to the Attorney General for an in-depth investi-

gation of her personal and business background. (Affidavit,

Allard, Frink and Saggiotes, Oct. 16, 1975, at 2.) On the basis of

his investigation, Rudman was unable to “report favorably,”

to the Commission on the application. (Affidavit, Rudman, Oct.

16, 1975, at 3.) In September, 1975, the Commission denied

plaintiff's application without giving her a hearing or the rea-

sons for the denial, and subsequently she filed her complaint in

this court.

Plaintiff's complaint is a hodge podge of allegations running

the entire gamut of the Civil Rights Act. She alleges that defen-

dants have deprived her of her Fifth and Fourteenth Amend-

ment rights to earn a living, to purchase and hold real and

personal property, to freely enter into contracts, and to partici-

pate in a license. She alleges further that they have deprived her

of these rights and her property without due process of law. She

claims that defendant members of the Racing Commission ille-

gally delegated their authority to defendant Rudman, that all

defendants exceeded the scope of their authority and acted in

an arbitrary and abusive manner, and that this was done pur-

suant to a conspiracy.

Plaintiff has failed to raise any substantial question as to the

constitutionality of NH RSA 284:6-a, 12-a, 15-a, 15-b and 16-a.

Her request for the convening of a Three-Judge Court is accord-

ingly denied.

Plaintiff has not alleged that defendants acted with any racial

or class-based animus and, therefore, her claims under 42 U.S.C.

§$§ 1982 and 1985 fail and are dismissed. Jones v. Mayer Co., 392

U.S. 409 (1968) ; Griffin v. Breckenridge, 403 U.S. 88 (1971).

Plaintiff has failed to plead any facts from which a conspiracy,

a necessary element under 42 U.S.C. § 1985, can be inferred.

“(T]he bare use of the word ‘conspiracy’ with no supporting

A.17

facts " is not sufficient. Moran v. Bench, 353 F.2d 193, 195

oe _ 1965) ; see, Griffin v. Breckenridge, supra, 403 U.S. at

42 U.S.C. § 1984 concerns review by the United States Su-

preme Court of cases arising under other provisions of the Civil

Rights Act and does not apply to claims for relief. Accordingly,

plaintiff's claim under Section 1984 is dismissed.

Defendants Rudman and Hess have moved, pursuant to

F.R.CP. 12 (b) (6), to dismiss all plaintiff's claims as to them.

This motion is granted. The only claim that is sufficiently viable

to require close scrutiny is the one under Section 1983 alleging

a violation cf the plaintiff's right to a due process hearing. It is

clear from the complaint that defendants Rudman and Hess did

not participate in any way in this refusal. It is the Racing Com-

mission that has acted in an allegedly unconstitutional manner.

Plaintiff has alleged no facts from which this court can find a

claim against Rudman and Hess under 42 U.S.C. § 1983. The

action against them is accordingly dismissed.

In order to determine whether plaintiff's claim states a cause

of action against defendant members of the New Hampshire

Greyhound Racing Commission under 42 U.S.C. § 1983, I must

first decide whether it involves a constitutionally protected right.

Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973) . The basic issue is

whether the defendant New Hampshire Greyhound Racing

Commission is required, under the due process clause of the

Fourteenth Amendment, to provide an applicant for a license to

operate a Greyhound race track a due process hearing before

denying or granting such application.’ I hold that it is not so

required.

' Although, under the facts of this case, plaintiff technically was not

an applicant, her position is the same. NH RSA 284:16-a (Supp.

1975) provides in part:

The license of any corporation shall automatically cease

upon the change in ownership, legal or equitable, of fifty

percent or more of the voting stock of the corporation and

the corporation shall not hold a dog race or meet for public

exhibition without a new license.

Since the plaintiff would be acquiring at least fift cent interest

in a licensed race track, she was, as a practical mare, applying for

a license to operate the New Hampshire Kennel Club.

A.18

In a due process analysis, the first step must be to consider

whether the plaintiff has alleged a “deprivation of interests en-

compassed by the Fourteenth Amendment's protection of liberty

and property.” Board of Regents v. Roth, 408 U.S. 564, 569

(1972). Because it is unclear from the pleadings whether plaintiff

is claiming an infringement of her property or liberty, I will

examine the parameters of both.

The Fourteenth Amendment's protection of property is broad _

but not infinite and has been limited by the Supreme Court to

“interests [in which] a person has already acquired . . . specific

benefits.” Roth, supra, 408 U.S. at 576.

To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it. /d. at

577.

The Court further noted that property interests

are created and their dimensions are defined by existing

rules or understandings that stem from an independent

source such as state law — rules or understandings that

secure certain benefits and that support claims of entitle-

ment to those benefits. op. cit.

A claim of entitlement can arise where state law or practice

creates a property interest which an individual has secured or

where the individual relies on the continued existence of the

“property” in his daily life. A state employee has a “claim of

entitlement” in his continued employment and is constitution-

ally protected from summary dismissal. Connell v. Higginbo-

tham, 408 U.S. 207 (1971); Slochower v. Board of Education,

350 U.S. 551 (1956). A nontenured state teacher may rely on

“mutually explicit understandings” concerning renewal of his

annual contract and thus acquire a “property” interest in his

continued employment. Perry v. Sindermann, 408 U.S. 593, 601

(1972) . A licensed driver has a property interest in the continued

possession of his license because “possession may become essen-

tial in the pursuit of a livelihood.” Bell v. Burson, 402 U.S. 535,

539 (1971). A welfare recipient is entitled to continued welfare

benefits so long as he continues to meet the statutory criteria.

Goldberg v. Kelly, 397 U.S. 254 (1970) . Finally, a student has

a claim of entitlement created by state law to remain in school.

Goss v. Lopez, 419 U.S. 565 (1975).

eae

A.19

Here, plaintiff has not acquired by virtue of her application

any entitlement to a race track license. She docs not have a prop-

crty interest cognizable under state Jaw, rules, custom, or under-

standing. State Jaw does not create any property interest in race

track license applicants; the law is explicitly permissive, and the

New Hampshire Supreme Court has upheld the horse race track

statute on those very grounds. NH RSA 284:16-a; North Hamp-

ton &c. Assn. v. Commission, 94 N.H. 156 (1946). Neither can

plaintiff claim any “understanding.” In her contractual dealings

with the Kennel Club, she expressly acknowledged the statutory

necessity of obtaining a license in order to participate in the

operation of the race track.

Plaintiff cannot claim an entitlement by way of necessity be-

cause she is not dependent to any degree in her daily life on

being allowed tq participate in the license. She is seeking a tax

shelter, not a means of livelihood. I rule that the plaintiff does

not have a cognizable property interest under the Fourteenth

Amendment.

The Fourteenth Amendment also protects “‘Jiberty” but, here

again, the range of protectible interests is not unlimited. It en-

compasses fundamental or natural rights, “those privileges long

recognized . . . as essential to the orderly pursuit of happiness

by free men.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Such privileges include the right to earn a living and the right to

engage in the occupation of one’s choice. Schware v. Board of

Bar Examiners, 353 U.S. 232 (1957). Plaintiff, here, does not

seek nor is she being prevented from either earning a living or

engaging in a chosen occupation. While no suggestion is made

that the use of the race track as a tax shelter is illegal, it is clear

that the desire to save taxes does not rise to the level of a consti-

tutionally protected right.

Plaintiff, in broad brush strokes, alleges that defendants have

infringed upon her protected rights to contract and to hold real

and personal property, but she does not allege, as indeed she

cannot, that they have in any way interfered with either her

present contract with the Kennel Club or her right to enter into

contracts in the future.

“Liberty” also includes plaintiff's interest in her good name

and reputation. The rejection of plaintiff's application neces-

A.20

sarily reflects the Commission's opinion that she is not suitable

to participate in operating 2 Greyhound race track in the State

of New Hampshire. The question is whether such unstated but

plainly understood reflection of the Commission's opinion of

plaintiff rises to the level of a constitutional deprivation of lib- .

erty. Plaintiff's “good name, reputation, honor, or integrity” and

standing in her community are not at stake merely because de-

fendants rejected her application; New Hampshire is not plain-

tiff's community. No charge has been leveled against plaintiff.

Wisconsin v. Constantineau, 400 U.S. 433 (1971). This is not a

situation where plaintiff will be stigmatized as a wrongdoer.

Hogge v. Hedrick, 391 F. Supp. 91, 110 (E.D. Va. 1975) . More-

over, plaintiff has not claimed or alleged any facts from which

I can infer that her reputation or good name have, in fact, been

damaged by defendants’ rejection of her application. She is cer-

tainly in no worse position than a teacher whose contract has

not been renewed. See, Board of Regents v. Roth, supra, 408

U.S. at 573.

I note that there are cases in which applicants for licenses have

been found to have protectable interests even though the claim-

ants are mere applicants. In Raper v. Lucey, supra, 488 F.2d 748,

the First Circuit found that a driver's license applicant has a

protected liberty interest in the “freedom to make use of one’s

own property, here a motor vehicle.” Jd. 488 F.2d at 752, quoting

Wall v. King, 206 F.2d 878, 882 (Ist Cir. 1953). Whether the

privilege of using one’s car is denominated a liberty interest

(Raper, id.) or a property interest (Bell v. Burson, supra, 402

U.S. 535), it is a privilege clearly different from the one plaintiff

seeks to obtain. A driver's license and the concomitant use of a

motor vehicle are often “essential in the pursuit of a liveliiiood.”

Id., 402 U.S. at 539. Here, the license plaintiff seeks would per-

mit her to accomplish a tax shelter; it is in no way essential to

her survival or to the conduct of her daily affairs. In Hornsby v.

Allen, 326 F.2d 605 (1964), a pre-Roth case, the Fifth Circuit

found that an applicant for a liquor license is entitled to due

process. Again, the liquor license can be differentiated from the

racing license plaintiff seeks because the liquor license may be

essential to a livelihood. The same reasoning applies to Homer

v. Richmond, 292 F.2d 719 (D.C. Cir. 1961), in which radio

telegraph operators had unsuccessfully sought licenses made

A.21

necessary by a newly enacted statute. The Circuit Court found

that once an operator meets the statutory critcria, he is entitled

to a due process hearing to meet charges of unsuitability. Besides

involving a license necessary for the pursuit of a chosen career,

Homer involved charges of “seditious” affiliations and activities.

As noted above, the plaintiff is not seeking a license necessary

to enable the pursuit of a livelihood, nor is she seeking to clear

her name or reputation of accusations or charges. I do not find

these cases dispositive of this situation.

In conclusion, I find that plaintiff has failed to state a claim

upon which relief can be granted. She has not alleged a depriva-

tion of any interest protected by the due process clause of the

Fourteenth Amendment.

While it may seem unfair that the plaintiff has had her license

application rejected without a statement of reason and without

a due process hearing, I must point out that, under the pertinent

New Hampshire statute, plaintiff did have a right to appeal the

decision of the Greyhound Racing Commission to the New

Hampshire Superior Court. NH RSA 284:13 specifically pro-

vides:

Any pene sprees by any final decision entered in pro

ceedings before the commission may, within ten days after

such decision is entered, appeal to the superior court by

tition specifying the grounds upon which said decision

is Claimed to be unreasonable or unlawful.

It would appear that the plaintiff had an adequate remedy in

the state courts of New Hampshire which she did not invoke.

The complaint is dismissed for failure to state a claim upon

which relief can be granted. F.R.C.P. 12 (b) (6).

SO ORDERED.

/s/ Hugh H. Bownes

United States District Judge

January 9, 1976

cc: Attorney General

E. Paul Kelly, Esq.

Leonard W. Yelsky, Esq. j

A.22

IV. COMPLAINT OF GERALDINE C. MEDINA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

GERALDINE C. MEDINA )

One Bratenahl Place

Bratenahl, Ohio 44108 )

Plaintiff, )

-US- )

WARREN B. RUDMAN ) COMPLAINT

c/o The Attorney General's Office

State House )

Concord, New Hampshire (JURY DEMAND ON

DAVID HESS COUNT 1)

c/o The Attorney General's Office C 75-297

State House. )

Concord, New Hampshire

ROBERT E. ALLARD )

c/o State of New Hampshire

Greyhound Racing Commission ) |

Room 404, Four Park Street

Concord, New Hampshire )

SYDNEY H. FRINK )

c/o State of New Hampshire

Greyhound Racing Commission )

Room 404, Four Park Street

Concord, New Hampshire )

SOTERIOS A. SAGGIOTES )

c/o State of New Hampshire

Greyhound Racing Commission )

Room 404, Four Park Street

Concord, New Hampshire )

Defendants. )

» gee

A.23

COUNT I.

1) Plaintiff is a citizen of the United States of America and a

resident of the City of Bratenahl, Cuyahoga County, Ohio.

2) Each of the Defendants herein are citizens of the State of

New Hampshire.

3) The Defendant, Warren B. Rudman, is now and was at all

times material hereto the duly appointed Attorney General of

the State of New Hampshire. The Defendant, David Hess, is

now and was at all material times herein complained of a duly

appointed Assistant Attorney General for the State of New

Hampshire. Each of the remaining defendants, namely Robert

E. Allard, Sydney H. Frink and Soterios A. Saggiotes, were each,

during all times material hereto, duly appointed members of the

State of New Hampshire Greyhound Racing Commission.

4) This is an action for a preliminary injunction and a per-

manent injunction as authorized by Title 42, United States

Code, Section 1982 and 1983 to redress the deprivation under

color of statute, regulation, custom or usage of the law, the

rights, privileges and immunities secured by the Constitution

and laws of the United States. The rights, privileges, and im-

munities sought to be protected are thos: secured by the Fifth

and Fourteenth Amendments to the United States Constitution.

Plaintiff seeks to restrain and enjoin Defendants and others

working under the direction of Defendants and under the con-

trol of Defendants from enforcement, operation, and execution

of the below described sections of the New Hampshire (RSA ch.

284) , namely: Title XXIV, Chapter 284, Sections 6-a, 12-a, 15-a,

15-b, 16-a and certain administrative action taken pursuant to

the above referred to New Hampshire statutes as taken by the

Defendants in this action, all of which deprive Plaintiff herein

of her constitutional right to earn a living and to purchase and

hold real and personal property.

5) Jurisdiction is conferred on this Court by 28 U.S.C. §1345

Subdivisions (1), (2), (3) and (4), providing for original juris-

diction of this Court in suits authorized by 42 U.S.C. §1982,

$1983 and §1985; jurisdiction is further conferred on this Court

——<- «

A.24

by 28 U.S.C. §2201 and 2202 relating to dec! jud

and by 28 U.S.C. §2281. +, she tmaaaa

6) This is an action for a declarat judgment pursuant to

Title 28, United States Code, Section 2201, declaring that the

following sections of the New Hampshire Revised Statutes An-

notated as they were administratively applied in the case of the

deprivation of licensing privileges to Plaintiff herein, were ap-

plied unconstitutionally by virtue of which they effectively de-

prived Plaintiff of her property without due process of law. The

above referenced statutes are set forth below:

(RSA 284 :6-a) :

_ “I. There shall be a state greyhound racing commission -

sisting of three members appointed by the peon. Bos with the odvtes

and consent of the council Not more than two members shall

belong to the same political party. Each shall hold office for a

term of three years and until his successor has been appointed and

qualified. Any vacancy shall be filled for the unexpired term. One

member shal] be appointed as chairman and one as secretary. No ‘

member shall have any pecuniary interest i 5 ,

sale of pari-mutuel pools Saal hevesniiee. aR S he

II. The greyhound racing commission is independent of and

separate from the state racing commission and is hereby granted

the same powers, rights, duties and responsibilities granted the

state racing commission under the RSA, to the extent such t

Is necessary to implement the provisions of this chapter sleeve

to greyhound racing. Any reference to the state racing commission

in the RSA shall be deemed to refer to the greyhound racing com-

rts if apy pe phe —_s out such purpose, provided that

ific provisions of the i i

mary Policable.” erring to dog racing shall govern

(RSA 284:12-a) :

“The greyhound racing commission shal] make rules and -

lations for the holding, conducting and operating of all dog a

or meets for public exhibition and for the operation of race tracks

on which any such race or meet is held. No person, association, or

for public ex new — a or operate any dog race or meet

i ibition, at w i- i

wy ney See sp No aa gam mutuel pools are sold, without

(RSA 284: 15-a) :

“Any person, association, or corporation desiring to hold a dog

race for — exhibition at which pari-mutuel pools are to be

sold, shall apply to said commission for a license to do so. The

application shall be signed and sworn to by the person or execu-

tive officer of the association or corporation and shall contain the

information set forth in section 15. Any New Hampshire agricul-

tural fair association certified as such, by the commissioner of

agriculture, shall be entitled to one special six day racing license

annually.”

(RSA 284:15-b) :

“Any person, association or corporation applying for or hold-

ing a license issued pursuant to the provisions of this chapter shall

file annually, not later than December thirty-first, with the attor-

ney general a complete and detailed written statement, signed

under oath, by the applicant or holder of such license, if an indi-

vidual, or by the officers of the applicant or holder of such license,

if an individual, or by the officers of the applicant or holder, if a

corporation or an association, containing in addition to such infor-

mation as the commission may prescribe by rule or regulation the

following: |

“I. The name, residence address and nature of the ownershi

interest, including where applicable the number of shares of stoc

held and, if known, how obtained, of every person who possesses

an ownership interest in such license applicant or holder.

“II. The name, address, present eee occupation or em-

ployment and the name and principal business of any corporation

or other organization in which such employment is carried on of

every director, officer and holder of ten _— or more ownership

interest in such license applicant or holder; and

“III. The name and all information which license applicant

or holder has or might reasonably be expected to have as to any

felony convictions of any officer, director or holder of an owner-

ship interest of any degree; provided, that if said license applicant

or folder is an association or corporation in which twenty-five or

fewer individuals or organizations hold an ownership interest or

stock then the information required by paragraphs I, II and III

hereof shall be provided by each such interest holder or stock-

holder, who shall be further required to submit a detailed state-

ment of his assets and liabilities on forms prescribed by the attor-

ney general.

q+ 26

(RSA 284:16-a) :

“If the greyhound racing commission is satisfied that all the

provisions hereof and the rules and regulations prescribed have

been and will be complied with by the applicant, it may issue a

license which shall expire on the thirty-first day of December. No

licensee shal] hold more than one license under RSA 284:16 (run-

ning or harness horse) while holding a license under this section.

The license shall set forth the name of the licensee, the place

where the races or race meets are to be held, and the time and

number of days during which racing may be conducted by said

licensee. Any license issued shal] not be transferable nor oo

able. Said commission shall have power to revoke any license for

good cause upon reasonable notice and hearing. The commission

may at any time for cause require the removal of any employee

or official employed by any licensee hereunder. The license of any

corporation shall automatically cease upon the change in owner-

ship, legal or equitable, of fifty percent or more of the voting stock

of the corporation and the corporation shall not hold a dog race or

meet for public exhibition without a new license. Any New Hamp-

shire agricultural fair association certified as such, by the com-

missioner of agriculture, shall be entitled to one special six day

license annually to hold a dog race meet.”

The administrative action taken by the Defendants herein

under RSA Chapter 284, was unconstitutional in that each of

the Defendant members of the New Hampshire Greyhound

Racing Commission illegally delegated his authority to the De-

fendants, Warren B. Rudman and David Hess, and the Defen-

' dants, Warren B. Rudman and David Hess, illegally acted under

such power and illegally unconstitutionally convinced each of

the Defendant members of the New Hampshire Greyhound

Commission to put in writing their order failing to “approve

Geraldine C. Medina as a financial backer, owner, or participant

in any way under the license granted to the New Hampshire

Kennel Club.” A copy of said finding of the New Hampshire

Greyhound Racing Commission is annexed hereto and labelled

Exhibit “A”.

7) This is a proper case for determination by a three-judge

court pursuant to 28 U.S.C. §2201 and 2202, sigce it seeks to

restrain the Defendants from the enforcement and operation of

a statutory scheme set forth above to deprive the Plaintiff of her

right to participate in a duly issued New Hampshire Greyhound

Racing license, said scheme creating a situation which is repug-

nant to the Constitution and to the laws of the United States.

A.27

8) Plaintiff seeks a temporary restraining order, preliminary

injunction, and permanent injunction herein to enjoin Defen-

dants and their agents, servants, employees, attorneys and suc-

cessors in office from using the aforedescribed sections of the

New Hampshire Revised Statutes Annotated under color of law

from depriving Plaintiff of her right to participate in a duly

issued New Hampshire Greyhound Racing license. Plaintiff

further alleges that the aforedescribed provisions of the New

Hampshire Revised Statutes Annotated fail to provide Plaintiff

with adequate notice and hearing on the merits of a controversy

between herself and the unknown contents of the report pre-

pared by Defendants, Warren B. Rudman and David Hess. Said

deprivation constitutes a denial of due process of law as set forth

in the Constitution of the United States.

9) Each of the Defendants named herein separately and in

concert, acted outside the scope of his jurisdiction and without

authorization of law and each of the Defendants, separately and

in concert, acted willfully, knowingly and improperly with the

specific intent to deprive Plaintiff of her constitutional rights.

10) Plaintiff says further that each and all of the acts of the

Defendants alleged herein were done by Defendants, and each

of them not as individuals but under the color and pretense of

the statutes and administrative regulations of the State of New

Hampshire and under their authority as state officers.

11) Prior to the 14th day of May, 1975, Plaintiff was ap-

proached by the two principal shareholders of the New Hamp-

shire Kennel Club, Inc. (hereinafter referred to as the “Club”),

namely, Henry D. Bogatin, Jr. (hereinafter referred to as “Boga-

tin”) and Angelo Cassaro (hereinafter referred to as ““Cassaro”’) ,

a corporation owning real estate upon which a greyhound racing

track was ultimately built. The Greyhound Racing Commission

of New Hampshire (hereinafter referred to as “Commission”) had

on the 29th day of July, 1974 issued to said Club a license to

conduct greyhound races. A copy of said license is annexed

hereto and labelled Exhibit “B” and had certified this fact on

‘ the 21st day of April, 1975 (see Exhibit “C” annexed hereto and

made a part hereof.) The above said Bogatin and Cassaro in-

A.28

formed Plaintiff that said Club was in need of financial assistance

and Plaintiff agreed to Joan said Club a substantial amount of

money, namely, ONE HUNDRED FIFTY THOUSAND DOL

LARS ($150,000.00) . Because of Plaintiff's substantial financial

position, the said Bogatin and Cassaro agreed to sell Plaintiff an

approximate fifty percent (50%) interest in said Club, all of

said sale being contingent upon Plaintiff obtaining approval

from the Commission. A copy of a memorandum prepared by

counsel for Bogatin and Cassaro evidencing this fact is annexed

hereto and Jabelled Exhibit “D”.

12) Pursuant to the agreement in principal that was entered

into by Plaintiff and Bogatin and Cassaro, Plaintiff loaned to the

said Club an approximate amount of SEVEN HUNDRED

THOUSAND DOLLARS ($700,000.00) .

13) In further pursuance of the agreement that Plaintiff

reached with Bogatin and Cassaro, she incurred accounting and

legal fees, the exact amount of which at the present time exceeds

TEN THOUSAND DOLLARS ($10,000.00) and which are

likely to increase significantly in the future by virtue of the

combined illegal acts of the Defendants herein.

14) Plaintiff in accordance with her agreement with Bogatin

and Cassaro retained attorney Joseph A. Millimet to file for her

an application to participate in the previously issued Greyhound

Racing license as set forth above. A copy of Plaintiff's Applica-

tion is annexed hereto, made a part hereof, and labelled Exhibit

“Ee

15) Plaintiff says further that subsequent to Plaintiff's appli-

cation to be licensed to participate in said Club license, the

Attorney General conducted some type of investigation and in

which Plaintiff cooperated fully by giving a long detailed state-

ment to Defendant Warren B. Rudman’s assistant, David Hess.

The results of this Attorney General investigation was kept

secret from Plaintiff, but Plaintiff believes that said investiga-

tion is the basis for Plaintiff's being turned down as a participant

in the aforedescribed Club's license. -

BEST GOPY AVAILABLE

A.29

16) Plaintiff says that she has a reputation unblemished in

any way and Plaintiff further says that she complies with any of

the standards as set forth in New Hampshire Revised Statutes

Annotated, Chapter 284 and all related sections thereto, but that

all of the Defendants acting independently, collectively and in

concert illegally under color of law rejected Plaintiff's aforesaid

application.

17) Plaintiff says further that the aforedescribed statutes of

New Hampshire and the administrative activity conducted there-

under by the Defendants herein were an illegal and unconstitu-

tional: method of depriving the Plaintiff of her constitutional

rights.

18) ‘Plaintiff says further that she has a substantial investment _

in excess of Seven Hundred Thousand Dollars ($700,000.00)

out-of-pocket money at stake by virtue of the illegal unconstitu-

tional acts of all of the Defendants herein and that she will suffer

immediate and irreparable harm unless this Court issues a tem-

porary restraining order and further injunctive relief that Plain-

tiff seeks herein.

19) Plaintiff shows that there exists an actual controversy

between the parties herein and that Plaintiff is threatened irrep-

arable harm by reason of the acts of the Defendants as set out in

her Complaint.

20) Plaintiff further says that she has no adequate remedy at

law.

A.30

COUNT Il.

21) For her second Count, Plaintiff realleges all of the acts

set forth in this Complaint as though fully rewritten herein and

says further that this action arises under the United States Con-

stitution, particularly under the provisions of the First and Four-

teenth Amendments to the Constitution of the United States and

under federal Jaw, particularly the Civil Rights Acts, Title 42

of the United States Code, Sections 1982, 1983, 1984 and 1985.

This Court has jurisdiction of this cause under and by virtue of

Title 28 of the United States Code Section 1348 and this Court

has venue under and by virtue of Title 28, Section 1391 (B).

22) Each and all of the acts of the Defendants alleged herein

were done by Defendants and each of them not as individuals,

but under the color and pretense of the statutes and administra-

tive regulations of the State of New Hampshire and under their

authority as state officers.

23) Plaintiff says further that the Defendants, Warren B.

Rudman, David Hess, Robert E. Allard, Sydney H. Frink, and

Soterios A. Saggiotes, acting under color of Jaw and in collusion

with each of the other Defendants herein, al] acting under color

of state law, have proceeded with arbitrary and abusive discre-

tion in ‘refusing to permit Plaintiff to participate in the afore-

described Club's license, and that said Defendants have further

all conspired with one another under color of law to abuse any

proper discretion that said Defendants may have had as state

officers, and that all of said acts were done in order to deprive

the Plaintiff of her constitutional rights to earn a living, to pur-

chase real estate and to freely enter legal contracts, all to her

damage in the amount of Three Million, Seven Hundred Thou-

sand Dollars ($3,700,000.00) .

WHEREFORE, in connection with Count I, Plaintiff prays

that the Court decree and declare that said conspiracy entered

into by the Defendants and all acts done pursuant thereto con-

stitute an illegal abuse of power, al] done under color of state

law; that a three-judge District Court be convened to allow and

determine this cause pursuant to 28 U.S.C. 2281 et seq; that the

A.31

administrative action taken under RSA Chapter 284: 6-a, 12-a,

15-a, 15-b, and 16-a, be declared unconstitutional and null and

void; that the Defendants, their successors in office and all per-

sons acting as their agents, officers and servants, or under their

direction or authority be permanently enjoined and restrained

from taking any action to enforce the aforedescribed adminis-

trative activity which would deprive the Plaintiff of her right to

participate in the aforedescribed Greyhound Racing license that

was issued to the New Hampshire Kennel Club, Inc.; that the

Court declare that the relief sought in Plaintiff's temporary re-

straining order and preliminary injunction be granted and that

the Defendants be compelled to permit Plaintiff to legally par-

ticipate in the aforedescribed Greyhound Racing license and for

such other and further relief as the Court may deem proper and

that Plaintiff, upon her second Count be allowed damages in the

amount of Three Million Seven Hundred Thousand Dollars

($3,700,000.00) , plus Plaintiff's costs of suit herein.

YELSKY, EISEN & SINGER CO., L.P.A.

BY: LEONARD W. YELSKY

$40 Leader Building

Cleveland, Ohio 44114

JOHN CULLITY

40 Bay Street '

Manchester, New Hampshire 03104

Attorneys for Plaintiff

A.32

CERTIFICATE OF COUNSEL

_ Counsel represents to this Court that he has not attempted to

inform Defendants; that it would be a vain act to attempt to

have notice of a proposed restraining order served on Defen-

dants; and that it would be a vain act to serve notice of an

other requested provisional relief on Defendants. .

Plaintiff has suffered, is presently suffering, and wil] continue

to suffer irreparable harm if the actions and conduct of the

Defendants, their servants, agents and employees are not halted

forthwith. Furthermore, Defendants will suffer no harm, loss

ti 8 by the staying of their proposed actions, nor will their

noencrsiy Are ty in any way prejudiced should Plaintiff's

YELSKY, EISEN & SINGER CO., L.P.A.

BY: LEONARD W. YELSKY

340 Leader Building

Cleveland, Ohio 44114

JOHN CULLITY

40 Bay Street

Manchester, New Hampshire 03104

Attorneys for Plaintiff

A. 33

State of New Hampshire

GREYHOUND RACING COMMISSION

Room 404, 4 Park Street

Concord, N. H. 03301

September 26, 1975

N. H. Kennel Club

Route 106

Belmont, N. H. 03220

Attention: Henry D. Bogatin, Jr.

Dear Mr. Bogatin:

This letter confirms our oral advice to you concerning the

proposed financing for the New Hampshire Kennel Club.

Based upon a report from the office of the Attorney General,

the Commission declines to approve Geraldine C. Medina as a

financial backer, owner, or participant in any way under the

license granted to the New Hampshire Kennel Club.

Sincerely yours,

N. H. GREYHOUND RACING COMMISSION

Robert E. Allard

Chairman

REA:bl

A.34°

State of New Hampshire

GREYHOUND RACING COMMISSION

Room 404, 4 Park Street

Concord, N. H. 03301

July 29, 1974

New Hampshire Kennel Club

1508 W. 53rd Street

W. Palm Beach, Florida 33407

Attention: H. Bogatin

A. Cassaro.

B. Mates

Dear Sirs:

This is to advise you that the New Hampshire Greyhound

Racing Commission met in the Commission Offices on July 29,

1974 and voted unanimously to grant your group a license to

construct a greyhound racing facility on the proposed site in

Belmont, New Hampshire during 1975.

Dates for racing were not awarded, as this action usually takes

piace during the month of October.

You may rest assured that you will be kept notified of this

pending meeting.

Sincerely yours,

N. H. GREYHOUND RACING COMMISSION

James F. Daly

Director

JFD:bal

A.35

State of New Hampshire

GREYHOUND RACING COMMISSION

Room 404, 4 Park Street

Concord, N. H. 03301

April 21, 1975

To Whom it may Concern:

is is to certify that the New Hampshire Kennel Club, a

tends nha A in the State of New 0 has

been issued a license by the New Hampshire Greyhoun acing

Commission to conduct greyhound racing meetings in the town

of Belmont, New Hampshire.

Very truly yours,

N. H. GREYHOUND RACING COMMISSION

William T. Hostetter

WTH:bl

4

A. 36

NIGHSWANDER, LORD, MARTIN & KILLKELLEY

Attorneys at Law

Laconia, New Hampshire 03246

May 14, 1975

Leonard W. Yelsky, Esq.

340 Leder Building

Cleveland, Ohio 44114

Re: New Hampshire Kennel Club, Inc.

Dear Leonard:

Mrs. Medina has advanced approximately $150,000 to the

New Hampshire Kennel Club until it completes its financing

through Horowitz Finance Corporation. It is my understanding

that the Horowitz Finance cena commitment is depen-

dent upon Mrs. Medina’s endorsement.

In light of Mrs. Medina’s substantial assistance with regard to

the financing of New Hampshire Kennel Club, Inc. and her

potential assistance in the future in the development of* the n

property of the New Hampshire Kennel] Club, subject to the

approval of the New Hampshire Greyhound Racing Commis-

sion, my principals, Henry D. Bogatin, Jr. and Angelo Cassaro,

‘are willing to afford Mrs. Medina an equity position in the New

Hampshire Kennel Club, Inc. While the details of this arrange-

ment cannot be specified at this time, it is the feeling of my

principals that Mrs. Medina’s interest should be approximately

50% of the equity of the company.-

My principals look forward to continuing to work with Mrs.

Medina in this project. Because of the necessity of obtaining the

approval of Horowitz Finance Corporation and the New Hamp-

shire Greyhound Racing Commission, and the substantial com-

mitment of time in completing the track prior to July 1, it is not

anticipated that these arrangements will be concluded prior to

July 1, 1975.

Respectfully yours,

Willard G. Martin, Jr.

WGM/mks

Copy to New Hampshire Kennel] Club, Inc.

* @

A.37

v. EXCERPT FROM PAGE TWO OF

DISTRICT COURT HEARING ON

ALL PENDING MOTIONS, DE-

CEMBER 5, 4975

""' The Court: What do you mean

by further equitable relief?

"" Mr. Yelsky: Well, all right.

This is exactly what I mean.

We have very carefully brought

to the Court's attention that

this woman has never been .

given a hearing or notice or

an explanation of why she has

not been licensed, although

we feel that she has complied

in every way with the State

law and that she should be

licensed.

"" The Court: All right. Are

you asking that she be given

a hearing?

"!' Wr. Yelsky: That is the fur-

ther equitable relief, Your

Honor.'"

A.38

VI. AMENDMENT 5

Criminal actions—Provisions concerning—Due process of law and

just compensation clauses.

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb; nor shall be

a compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall

ivate property be taken for public use, without just compensation.

‘Constitution, Amen t Y, Page 1.

VII. AMENDMENT 14

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and subject to the

~ jurisdiction thereof, are citizens of the United States and of the State A

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws. USCS Constitution, Amendment XIV, page 444.

= és

VIII. TITLE 42 USC 8 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other person within the

rian ne o- jursdiction-thereof to the deprivation of any rights, ‘privileges, or immuni-

ties secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress. 42 USCS @ 1983, cage 219.