Opposition Brief — Loretto v. Group W Cable, Inc.

No. 87-2100

IN THE

SUPREME COURT OF THE UN

OCTOBER TERM, 1987

JEAN LORETTO, on behalf of herself and all

others similarly situated,

Plaintiff-Petitioner,

Vv.

GROUP W CABLE, INC. and CITY OF NEW

YORK, .

Defendants-Respondents,

-and-

ATTORNEY GENERAL OF THE STATE OF

NEW YORK,

Intervenor- Respondent.

RESPONDENT CITY OF NEW YORK'S BRIEF

IN OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE NEW YORK

STATE SUPREME COURT, APPELLATE

DIVISION, FIRST DEPARTMENT

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Respondent

City of New York,

100 Church Street,

New York, New York 10007.

(212) 566-4329 or 4338

LEONARD J. KOERNER, *

PAMELA SEIDER DOLGOW,

ELIZABETH S. NATRELLA,

of Counsel.

*Attorney of Record

August 22, 1988

COUNTER-QUESTIONS PRESENTED

1. Whether there is a final appealable

state court judgment giving this Court

jurisdiction under 28 U.S.C. §1257?

2. Whether petitioner is a prevailing

party entitled to attorneys' fees and costs

under 42 U.S.C. §1988 since she failed to

state and prove a cause of action for

deprivation of her right to just compensation

pursuant to 42 U.S.C. §1983 where the New

York Cable Television statutory scheme was

upheld as_ constitutionally valid, and

petitioner has not sought nor been denied

just compensation, and her other claims,

sounding primarily in trespass, were

substantially rejected?

3. Assuming, arguendo, that

petitioner is a prevailing party under 42

U.S.C. §1988, whether attorneys’ fees may

be awarded against intervenor-defendant

City of New York under Kentucky v.

i

—_

Graham, 473 U.S. 159 (1985), where the

City has no _ substantive liability on the

merits?

ii

TABLE OF CONTENTS

COUNTER-QUESTIONS PRESENTED...

TABLE OF AUTHORITIES.............

STATEMENT OF THE CASE ..........

Loretto Litigation History ......

Attorneys’ Fee Proceedings

and Opinions Below ...............

REASONS FOR DENYING THE WRIT

OF CERTIORARI

THE ORDERS BELOW ARE NON-

FINAL. IN ANY EVENT, THE

COURT BELOW FOLLOWED

WELL-SETTLED PRINCIPLES

OF

LAW ESTABLISHED BY THIS

COURT IN DETERMINING THAT

PETITIONER IS NOT

PREVAILING PARTY WITHIN

A

THE

MEANING OF 42 U.S.C. §1988,

WHERE, INTER ALIA, SHE FAILED

TO PLEAD AND PROVE A DENIAL

OF JUST COMPENSATION UNDER

42 U.S.C. §1983.

MOREOVER, UNDER APPLICABLE

PRECEDENT, PETITIONER MAY

NOT RECOVER ATTORNEYS' FEES

FROM THE CITY OF NEW YORK

WHICH HAD NO SUBSTANTIVE

LIABILITY ON THE MERITS.....

et or) t ererrrerery yr errr Tyr re

TABLE OF AUTHORITIES

Cases

Annunziato v. The

Gan, Inc.,

744 F.2d 244

(2d Cir. 1984) ............

Baird v. Belotti,

724 F.2d 1032

(ist’Cir.), cert. denied,

467 U.S. 1227 (1984) _.......

Blum vy. Stenson,

465 U.S. 886 (1984) _.........

Bradley v. Richmond

School Board,

416 U.S. 696 (1974) .......

City of Detroit v.

Grinnell Corp.,

495 F.2d 448

(2G Clip. 1974) «ss ccvcccccces

City of Riverside v. Rivera,

Gee Dee GE CHOEED cvcccccess

Copeland vy. Marshall,

641 F.2d 880 (D.C. Cir.

1980) (en banc) _—.........4..

Counsel v. Dow, 849 F.2d 731

+ EE: Pee

Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469

Pe Woo ven Be a

Department of Banking v. Pink,

317 U.S. 264 (1942)

Gingras v. Lloyd,

740 F.2d 210

(2d Cir. 1984).......

Gomez v. Toledo,

446 U.S. 635 (1980)

Hanrahan v. Hampton,

446 U.S. 754,

reh'g denied,

448 U.S. 913 (1980)

461 U.S. 424 (1983)

Hewitt v. Helms,

U.S. , 107

S.Ct. 2672 (1987)

Kelley v. Metropolitan County

Bd. of Educ., 773 F.2d 677

(6th Cir. 1985) (en banc),

Kentucky v. Graham,

473 U.S. 159 (1985)

Loretto v. Group W Cable,

127 A.D.2d 475, 511

N.Y¥.S.2d 542 (lst Dept.

ROBT) ccc ccccccccce

Loretto v. Group W Cable,

135 A.D.2d 444, 522

N.Y.S.2d 543 (lst Dept.

BGGT) —cccccccccccccs

Loretto v. Group W Cable,

71 N.Y.2d 802, 527

eee Bo eer re Terres 18

Loretto v. Teleprompter

Manhattan CATV Corp.,

98 Misc. 2d 944, 415 N.Y.S.

2d 180 (Sup. Ct., N.Y.

| er or ee ee 7

Loretto v. Teleprompter

Manhattan CATV Corp.,

73 A.D.2d 849, 422 N.Y.S.

2d 550 (ist Dept. 1979) ............ 7

Loretto v. Teleprompter

Manhattan CATV Corp.,

53 N.Y.2d 124, 440 N.Y.S.

eS ee re er 8

Loretto v. Teleprompter

Manhattan CATV Corp.,

oer Wats GO COED eke sb cadecnes 2, Ba

Loretto v. Teleprompter

Manhattan CATV Corp.,

58 N.Y.2d 143, 459 N.Y.S.

ee, ee ere eee ee 10-T1,

Maine v. Thiboutot,

a ee Nk ae aL ab edo 4k os 25

Mills v. Electric Auto-Lite Co.,

ese rrr rar 27

Minnick vy. California

Department of Corrections,

ee ee 6 Ere ee 24

Monell v. Department of Social

Services, 436 U.S. 658

CE ce a pases ceeess 30

New York Association for Retarded

Children v. Carey, 711 F.2d

Ree BE xa obec c cece ccese 27

New York City Unemployment

and Welfare Council v.

Brezenoff, 742 F.2d 718

eR ee 27

Newman v. Piggie Park

Enterprises, Inc., 390 U.S.

EEE ee ae, 32

North Carolina Dept. of

Transportation v. Crest

Street Community Council,

479 U.S. 107 S.Ct. 336

Be re 38

Northcross v. Memphis

Board of Education,

ee ccc cece eee 32

Pennsylvania v. Delaware

Valley Citizens’ Counsel

for Clean Air, _U.S._,

ee 37

Republic Natural Gas Co.

v. Oklahoma,

Mw ce eee 22

Rose v. Nebraska, 748 F.2d

1258 (8th Cir. 1984),

cert. denied sub. nom.,

Lutjeharms v. Rose,

Te 33

vii

Williamson County Regional

Planning Commission v.

Hamilton Bank,

orf & OS. . > ) rrr 18, 26,

Young v. City of Killeen,

Texas, 775 F.2d 1349

(5th Cir.),

reh. denied, 778 F.2d

oo OR eS rere rrr rer rrTer 31

Constitutions, Statutes and Rules

ie a, | 22

2 ke ere ee passim

ee ee —“(‘« KR ROS passim

Se! | MAG bad euuneeucs eens aeekcekaes 11

Ee ) Saeekhewkeseneenuecuknaee see 6

BPP oe re Pee re re ere passim

9 N.Y.C.R.R. 8598 et seq. ........ 4-5,

11-12

gy eee eh ger ett ae 18

RN Sc Fed ol Oa le OE 24

TE et | a re 24

viii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JEAN LORETTO, on behalf of herself and all

others similarly situated,

Plaintiff-Petitioner,

Vv.

GROUP W CABLE, INC. and CITY OF NEW

YORK,

Defendants-Respondents,

-and-

ATTORNEY GENERAL OF THE STATE OF

NEW YORK,

Intervenor- Respondent.

RESPONDENT CITY OF NEW YORK'S BRIEF

IN OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE NEW YORK

STATE SUPREME COURT, APPELLATE

DIVISION, FIRST DEPARTMENT

STATEMENT OF THE CASE

The instant case concerns the efforts of

plaintiff-petitioner Jean Loretto ("petitioner")

to recover attorneys’ fees in an action,

sounding in trespass and _ unsuccessfully

challenging the constitutionality of New York

Executive Law, section 828, which authorizes

installation of cable television equipment on a

landlord's premises and provides

compensation therefore, following a judgment

dismissing her complaint.

Petitioner now seeks to have this Court

review by writ of certiorari orders of the

New York State Supreme Court, Appellate

Division, First Department, entered February

10, 1987 and December 15, 1987 respectively,

which affirmed an order and judgment of the

New York Supreme Court, New York County,

entered June 25, 1985, denying petitioners’

application for some $500,000 in attorneys’

fees and costs. The Appellate Division held

that petitioner, who has never sought nor

been denied just compensation for’ the

minimal taking of her property, was not a

"prevailing party” pursuant to 42 U.S.C.

§1988, where, inter alia, she failed to "allege

sufficiently, much less prove” any federal

constitutional violation (A11-A12).2

a) Loretto Litigation History”

In January 1976, petitioner, the owner

of a Manhattan apartment building,

commenced this alleged class action in New

York Supreme Court seeking over $1,000,000

in damages for alleged trespass by

defendants Teleprompter Manhattan CATV

Corp. and Teleprompter Corporation

(hereafter “Teleprompter” or “Group w").°

luniess otherwise stated, numbers in

parentheses refer to pages in the Petitioner's

Appendix.

2in the interest of judicial economy, we will

rely on the statutery background portion of

co-respondent-appellee Group W's Brief in

Opposition to Certiorari.

3 although nominally brought as ae class

action, no notice was ever given, Loretto y.

Teleprompter Manhattan CATV Corp., 458

U.S. 419, n.4 (1983). Although that notice

was postponed by stipulation, id. n.4, that

stipulation was only pending disposition of

(Footnote Continued)

The complaint alleged numerous causes of

action for trespass by Teleprompter's

unlawful installation of cable _ television

("CATV") components on her property

(76-23). It also alleged that = such

installation, pursuant to New York Executive

Law, — section 828(1)(b),° and the

corresponding administrative regulations, 9

N.Y.C.R.R. Part 598, constituted a

(Footnote Continued)

the parties’ motions for summary judgment on

the underlying action. Petitioner has now

recognized that only individual applications

may be made for compensation (Pet., p. 16).

‘Executive Law, section 828(1)(b) provides:

No landlord shall

b. demand, or accept payment

from any tenant, in any form, in

exchange for permitting cable

television service on or within his

property or premises, or from any

cable television company in

exchange therefor in excess of any

amount which the commission shall,

by regulation, determine to be

reasonable.

ieee aies a — eae 1 : ° “ a _——

eo a ae ~ ea - uf

deprivation of property without due process,

and, additionally, a taking of property

without just compensation (125-26).

In her prayer for relief, plaintiff

sought: (1) a damages award of $1,000,000

for trespass, including actual damages, and

the alleged value of the property rights to

Teleprompter, and its "mense profits," i.e.,

5% of revenues derived, and (2) to enjoin

defendants from placing CATV components on

any real property without the owner's

written consent. Teleprompter'’s amended

answer raised numerous affirmative defenses,

including plaintiff's failure to seek the

reasonable compensation available under the

Executive Law from the State Commission on

Cable Television ("CATV Commission").

Thereafter, in 1977, the City of New

York's motion to intervene as a defendant in

order to protect the public interest in its

role as municipal franchisor under Executive

Law, section 819, was granted. The City

sought to ensure the continued growth of

cable television service, and to avoid the

imposition of extraordinary charges on cable

companies, which costs would ultimately be

borne by subscribers and result in a

decrease in subscriptions. It also sought to

noeteih landowners from arbitrarily denying

tenants access to cable service.

In its answer, the City denied the

numerous allegations of trespass, and that

there was an unconstitutional taking without

just compensation. It pled = several

affirmative defenses, including that the

placement of cable television components on

plaintiff's property was authorized by

Executive Law, section 828, and_ that

plaintiff had failed to seek compensation from

the CATV Commission under Executive Law,

§828(1)(b).

Following separate motions for summary

judgment dismissing the complaint, by order

entered March 14, 1979, the Supreme Court,

New York County, granted summary

judgment to defendants on the basis of their

threshold argument that the Executive Law,

section 828, was a valid exercise of the

State's police power. Loretto vy.

Teleprompter Manhattan CATV Corp., 98

Misc. 2d 944, 415 N.Y.S.2d 180 (Sup. Ct.,

N.Y. Co., 1979). Having made that finding,

the Court did not address the defendants'

alternative argument that the _ statute,

Executive Law, §828(b)(1), already provided

for just compensation, since it provided for

payment of a reasonable fee. The Appellate

Division, First Department, affirmed, without

opinion. Loretto v. Teleprompter Manhattan

CATV Corp., 73 A.D.2d 849, 422 N.Y.S.2d

550 (lst Dept., 1979).

Following the State of New York's

intervention, the New York Court of Appeals

affirmed that order. Loretto Vv.

Teleprompter Manhattan CATV _ Corp., 53

N.Y.2d 124, 440 N.Y.S.2d 843 (1981). It

addressed only the threshold argument,

holding, that Executive Law, section 828, was

a valid exercise of the police power rather

than a taking requiring just compensation.

Notwithstanding, it acknowledged that the

statute, in any event, provided for

reasonable compensation as determined by

the CATV Commission. Id. at 130-131, 142.°

On appeal, this Court unanimously

upheld the validity of section 828 of the

The Court acknowledged that the

Legislature had determined that landlords

should be permitted compensation as

determined reasonable by the CATV

Commission, see Exec. Law, §828(1)(b), but

in dicta only, expressed its view that the

Legislature could have permitted that no

payment need be made. Id. at 142.

Executive Law as a proper exercise of the

police power. Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 425

(1982). Nonetheless, in a 6-3 opinion, this

Court rendered a "very narrow" holding

affirming the "traditional rule" that "[the]

minor but permanent physical occupation"

constituted a taking for which just

compensation was due. Id. at 421, 441.

Based on that "very narrow” ruling,

this Court reversed and remanded to the

New York Court of Appeals to consider the

amount of compensation due. Id. at 441. It

did not rule on the issue of whether state

law already provided a method for just

compensation, and noted that the Court of

Appeals had not yet determined whether the

nominal fee ordinarily awarded was adequate

compensation. Id. at 425. This Court

expressed no opinion on the ameunt due, but

rejected any assumption that the high fees

exacted prior to the law's enactment would

be proper. Id. at 441. In the dissenting

opinion, Justice Blackmun stressed _ that

"{hjappily, the Court leaves open the

question whether §828 provides landlords like

appellant sufficient compensation for their

actual losses..." Id. at 456, n.12.

On remand, rejecting petitioners’

separation of powers argument, the New

York Court of Appeals unanimously held that

section 828 of the Executive Law is

constitutionally valid because it provides a

method for determining reasonable, i.e., just

compensation for both crossover and

noncrossover situations. Loretto v.

Teleprompter Manhattan CATV Corp., 58

N.Y.2d 143, 147-154, 459 N.Y.S.2d 743,

746-749 (1983). It thus adopted the

alternative argument made by the defendants

City et al. throughout these proceedings. It

found that the CATV Commission could

7 10-

properly determine, by regulation and

administrative hearing, the amount of

compensation due, but the lower Court was

to retain jurisdiction for the purpose of

reviewing any award of just compensation in

the instant case. Id. at 149-150; see Exec.

Law, §§816(3)(5), 828(1)(b); 9 N.Y.C.R.R.

598.1--598.7.

In addition, the Court of Appeals

expressly rejected the bulk of plaintiff's

other arguments on remand. Id. at 147-155.

This included her persistent arguments of

trespass, id. at 143, except to the extent,

petitioner, “if so advised", decided to

proceed with a trespass action against Group

W for the ten-month period prior to the

statute's effective date. Id. at 147-149.

The Court also rejected her extended

arguments that the New York Eminent Domain

Procedure Law superseded the Executive

Law, id. at 150-151, as well as various other

1]

meritless alleged censtitutional flaws, id. at

152-154.

The Court of Appeals did invalidate a

single one of the Commission's regulations, 9

N.Y.C.R.R. §598.3, which had required that

an owner's application for compensation be

made within 60 days after October 30, 1973,

or the date of installation, whichever was

later. Id. at 154. Because section 598.3

could be construed as barring a landlord's

claims prior to the receipt of notice of the

right to just compensation, the Court found

it alone invalid,’ without disturbing the

constitutionality of the statute. Id.

In so doing, the Court stressed that

plaintiff never raised the notice issue until

the case reached the Court of Appeals on

remand. Id. The Court found that the

notice issue was not properly before it, and

i appears from the stipulated facts no

longer to present a problem," because both

-12-

Teleprompter and the Commission had

immediately agreed to waive and repeal that

regulation Id. Following this Court of

Appeals' decision almost uniformly rejecting

all oof. plaintiff's claims on remand,

petitioner's motion for reargument was

denied, by order entered April 28, 1983.

Loretto v. Teleprompter Manhattan CATV

Corp., 59 N.Y.2d 761, 463 N.Y.S.2d 1030

(1983).

Thereafter, by Order and Judgment on

Remittitur dated July 11, 1983, the Supreme

Court affirmed Special Term's earlier 1979

judgment dismissing petitioner's complaint.

It modified the order solely by: (i) declaring

Regulation 598.3 to be invalid, (ii)

permitting petitioner to apply to the

Commission for payment of "just

’

compensation," and (iii) permitting petitioner

to proceed with her individual action in

trespass against Group W, "if she be so

-13-

advised," for the period prior to _ the

enactment of Section 828. Petitioner has

taken no steps in furtherance of any of

these claims.

In particular, she never submitted an

application to the CATV Commission, and

thus never received a determination of

compensation due her. Similarly, she never

pursued a trespass action against Group W

for the 10-month period prior to the law's

enactment. Further, at the time of her

application, no other property owners had

submitted applications for compensation to

the Commission and had not done so through

late 1987 (see A8).

b) The Attorneys’ Fee Proceedings

and Opinions Below

Instead of pursuing the above actions,

a year and half later, in December 1984,

plaintiff moved in Supreme Court, New York

County, for attorneys’ fees and _ costs,

-14-

alleging entitlement under 42 U.S.C. section

1988 and under N.Y. Civil Practice Law and

Rules ("CPLR"), section 909, allowing fees

in state class actions. She sought a total of

$503,590.00 against Group W, successor to

defendant Teleprompter, $454,677.00 against

the City of New York, and $270,136.50

against the State of New York; she sought

joint and several liability, and apportioned

such fees based solely on the time of entry

into the lawsuit. Defendant City and Group

W Cable argued that petitioner was _ not

entitled to fees on various grounds, and the

State defaulted on the motion.

By order, and underlying opinion,

entered June 25, 1985, the Supreme Court,

New York County, denied the motion "as

premature with leave to renew at the

appropriate time" (A24-A43). Rejecting

defendants’ arguments, the Court found that

petitioner was a "prevailing party" within

-15-

HI chek nym oie

§1988 (A37-A38). Notwithstanding, it found

that it was unable to assess the true impact

of petitioner's and her counsel's efforts,

until she proceeded to the CATV Commission

for her "just compensation" (A42).° In

December 1985, the Supreme Court, New

York County, denied the reargument motions

by petitioner and Group W (A45-A48).

By order entered February 10, 1987,

the Appellate Division, First Department,

affirmed without opinion, the lower Court's

June 1985 order denying the attorneys’ fees

application (A21). Loretto v. Group W

Cable, 127 A.D.2d 475, 511 N.Y.S.2d 542

(lst Dept., 1987). Upon cross-motions, by

Srhe Court rejected the City's alternative

argument that the action should be dismissed

as against it based on petitioner's failure to

establish the City's liability, i.e., showing a

municipal policy resulting in a civil rights

deprivation (A39), and failed to address its

arguments based on its extremely limited

intervention role in the lawsuit.

-16-

order of December 15, 1987, the Appellate

Division granted reargument and adhered to

its prior affirmance for the reasons stated

thereafter (A1-Al17). Loretto v. Group W

Cable, 135 A.D.2d 444, 522 N.Y.S.2d 543

(Ist Dept. 1987).

Specifically, the Appellate Division held

that the lower Court had correctly denied

the motion, but had erroneously found

petitioner to be a "prevailing party” (A3).

Upon its own thorough review of _ the

litigation history and applicable precedent

(A2-All), the Appellate Division held that

the establishment of a taking alone was

insufficient to establish petitioner's 42

U.S.C. §1983 claim (A10-All1). Rather,

until petitioner applied for just

compensation, utilizing the Executive Law

statutory scheme, and was denied such

compensation, she had failed to plead

sufficiently, much less prove, the denial of

17-

any federal constitutional right (A11-A13)

(citing, inter alia, Gomez v. Toledo, 446

U.S. 635 (1980) and Williamson County

Planning Commission v. Hamilton, 473 U.S.

172 (1985)) (see text of opinion, reproduced

in Group W's’ Brief in Opposition to

Certiorari) 4

On March 24, 1987, the Court of

Appeals denied petitioner's motion for leave

to appeal the Appellate Division's orders

(A84). Loretto v. Group W Cable, 71

N.Y.2d 802, 527 N.Y.S.2d 768 (1987).

‘The Appellate Division also _ rejected

petitioner's claims to entitlement under state

law, CPLR 909, allowing discretionary fees in

class actions (A13-Al17). Noting that no

notice was ever given to the putative class,

it found that alleged members thereof “are

consigned to essentially the same procedures

for obtaining compensation as ... existed

ever since the enactment of Executive Law

§828 [in 1972]" (A13).

-18

REASONS FOR DENYING

THE WRIT OF CERTIORARI

THE ORDERS BELOW ARE

NON-FINAL. IN ANY EVENT,

THE COURT BELOW FOLLOWED

WELL-SETTLED PRINCIPLES OF

LAW ESTABLISHED BY THIS

COURT IN DETERMINING THAT

PETITIONER IS NOT A

PREVAILING PARTY WITHIN THE

MEANING OF 42 U.S.C. $1988,

WHERE, INTER ALIA, SHE FAILED

TO PLEAD AND PROVE A DENIAL

OF JUST COMPENSATION UNDER

42 U.S.C. §1983.

MOREOVER, UNDER APPLICABLE

PRECEDENT, PETITIONER MAY

NOT RECOVER ATTORNEYS' FEES

FROM THE CITY OF NEW YORK

WHICH HAD NO SUBSTANTIVE

LIABILITY ON THE MERITS.

Petitioner contends that this case merits

review for three reasons (Pet., pp. 21-22).

She argues first that there is a "chilling

effect" upon resort to New York courts for

vindication of constitutional rights and by an

alleged "evading" of a directive of this Court

(Pet., pp. 21, 23-26). Second, she argues

that it offers a "vehicle’ for more precise

-19-

definition of the concepts of a section 1983

cause of action and of "prevailing" under

section 1988 (Pet. br., pp. 26-37).

Thirdly, she claims it presents the issue of

entitlement to interim awards in protracted

litigation, "even if the success is deemed to

be only at an interim stage” (Pet., pp. 22,

38-43).

As we will show below, these orders are

not final. In addition to being non-final,

the orders should not be reviewed because

we submit that, under well-settled principles

of law established by this Court, petitioner

did not demonstrate that she met any of the

prerequisites for a fee award under 42

U.S.C. §1988. Of major importance, as the

Appellate Division correctly held, she has

never proved a violation of any federal

constitutional right under 42 U.S.C. §1983.

The decision below is not in conflict with

any decision of this Court. Further, there

-20-

is no compelling federal issue of wide-spread

public importance. This case was essentially

unsuccessfully prosecuted in trespass and

unsuccessfully challenged the

constitutionality of New York Executive Law,

section 828, authorizing cable television

equipment installation on a_ landlord's

ooeninne and providing compensation

therefore.

While the petitioner obtained a "very

narrow” holding that there was a_ taking

based on what this Court termed _ the

"traditional rule," 458 U.S. at 441, she has

never utilized the available Executive Law,

§828, statutory procedures for obtaining just

compensation, essentially intact since 1972.

Thus, she has never been denied just

compensation. Instead, she waited almost

two years after a judgment dismissing her

complaint, but retaining jurisdiction to

review any such award, to seek a huge

-21-

award of attorneys’ fees. Thus, further

review is unwarranted and the petition for a

writ of certiorari should be denied.

(1)

As a threshold matter, the orders for

which appeal is sought are non-final state

court judgments, thereby depriving this

Court of jurisdiction under 28 U.S.C.

§1257(2). See, e.g., Republic Natural Gas

Co. v. Oklahoma, 334 U.S. 62, 67-72 (1948);

Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 476-487 (1975). The Appellate Division

opinion makes clear that petitioner may seek

just compensation from the CATV Commission

(" . . . [petitioner], who to date has not

utilized the procedures to obtain

compensation which have existed in

substantially the form they do today since

the enactment of Executive Law §828 in 1972,

cannot now make a §1983 claim" (A12)

(emphasis added)). Indeed, the Court of

-23-

Appeals’ 1983 opinion instructed the lower

Court to retain jurisdiction to review any

eventual award. See Loretto Vv.

Teleprompter Manhattan CATV Corp., supra,

58 N.Y.2d at 147, 459 N.Y.S.2d at 746

(see also A82 -- lower Court judgment

retaining jurisdiction) . Petitioner has not

yet pursued these state administrative

proceedings, and, further, she has never

renounced her opportunity to do so. See,

e.g., Department of Banking v. Pink, 317

U.S. 264, 268 (1942) (test of finality

is " . . . whether the record shows that the

order of the appellate court has in fact fully

adjudicated rights and that the adjudication

is not subject to further review by a state

Court").

Furthermore, in seeking review of the

Appellate Division orders, petitioner sought

leave to appeal to the New York Court of

Appeals, rather than claiming an appeal as

-323-

of right on constitutional grounds. Compare

New York CPLR 5602(a)(1)(i) with CPLR

5601(b). We believe it is understandable

why she did not seek review as of right,

since, as discussed below, there is no

substantial constitutional question directly

involved herein. In any event, however,

even in seeking permission to appeal under

CPLR 5602(a)(1)(i), there must be a "final"

determination. Here, the Court of Appeals

denied the motion (A84), but without

indicating if it was for want of the

jurisdictional statutory prerequisite "final"

determination. Based on all the above,

however, the orders are non-final and,

accordingly this Court lacks jurisdiction.

The petition should thus be denied. See

Minnick v. California Department of

Corrections, 452 U.S. 105, 122-127 (1980).

-94-

(2)

In any event, pursuant to 42 U.S.C.

section 1988, in any action or proceeding to

enforce a provision of section 1983, a court,

Bs in its discretion, may allow’. the

prevailing party ..." reasonable attorneys’

fees as part of the costs. 42 U.S.C.

8$ 1983, 1988; see Maine v. Thiboutot, 448

U.S. 1 (1980). While such an award should

ordinarily be granted "unless __ special

circumstances would render such an award

unjust,"’ Newman v. Piggie Park Enterprises,

Inc., 390 U.S. 400, 402 (1968), a plaintiff

must establish the two prerequisities: (1)

that she stated a claim pursuant to section

1983, and (2) that she was a prevailing

party.

In the instant case, petitioner failed on

both counts. First, she never alleged and

proved a constitutional violation since she

has never sought nor been denied just

compensation. Williamson County Regional

Planning Commission vy. Hamilton, 473 U.S.

172, 194-195 n.13 (1985) ("... a property

owner has not suffered a violation of the

Just Compensation clause until [she] has

unwaceeentulte attempted to obtain just

compensation through the procedures

provided by the State for obtaining such

compensation"). As reviewed above, ante,

pp. 3-14, and in Group W's Brief in

Opposition to Certiorari, Executive Law,

§828, provides an adequate means _ for

seeking just compensation in the first

instance from the State Commission on Cable

Television, with judicial review thereof, as it

has always done since its passage in 1972 by

the New York State Legislature.

Moreover, petitioner is not a prevailing

party within the meaning of 42 U.S.C.

§1988. Hewitt v. Helms, 7.%. ...,.

-26-

Hampton, 446 U.S. 754, 757 (1980) (per

curiam). See also Gingras v. Lloyd, 740

F.2d 210, 212 (2d Cir. 1984); New York City

Unemployment and _é Welfare Council iv.

Brezenoff, 742 F.2d 718, 724 n.4 (2d Cir.

1982). The minimal results of this lawsuit,

an interlocutory "very narrow" ruling that

there was a "traditional" taking, and an

invalidation of a minor CATV Commission

regulation, never challenged in the

underlying suit, does not constitute

substantive relief on the merits, and clearly

petitioner did not establish any liability on

the merits on the part of defendants,

particularly defendant City. Kentucky yv.

Graham, 473 U.S. 159 (1985).°

8 petitioner's reliance on Mills v. Electric

Auto-Lite Co., 396 U.S. 375 (1970) (a

non-civil rights case) and _ Bradley vy.

Richmond School Board, 416 U.S. 696 (1974)

(Pet., pp. 35-36) is misplaced, since she

(Footnote Continued)

-27-

Significantly, petitioner ignores this Court's

own statement that it rendered a "very

narrow” holding and used a "traditional" and

"historical" test. Loretto v. Teleprompter

Manhattan CATV Corp., supra, 458 U.S. at

435-439, 441 (see Pet., p. 11). Further,

this Court firmly rejected petitioner's

contention that Executive Law, §828, was an

invalid exercise of the police power and thus

unconstitutional. Accordingly, on _ this

record, and for all the above reasons and

those stated in Group W's. Brief in

Opposition, petitioner was not a prevailing

party within the meaning of 42 U.S.C.

§1988.

While petitioner now claims that she

brought this suit only to obtain a

determination of entitlement to just

(Footnote Continued)

has never established any liability on the

merits, as required in both.

-28-

compensation for the taking caused by

installation of CATV components (Pet.,

p. 9), as detailed above, ante, pp. 4-5, she

primarily sought a huge damages award

based on the state law of trespass. Indeed,

following this Court's decision, on remand in

the Court of Appeals, petitioner argued that

her action was exclusively in trespass

despite this Court's decision that there was

a "taking. n9

9For example, in her 145 page Main Brief on

Remand ("Rem. br."):

A. She opened her argument to

the Court of Appeals with the

statement that "This is a _ class

action in trespass. ..." (Rem.

br., p. 1 (emphasis in original).

B. Her first subheading, stated:

"This Action Is _ Exclusively In

Trespass. ...”" (Rem. br., p.

15).

C. Plaintiff further asserted:

"The Supreme Court's Decision

That There Has Been a ‘Taking'

(Footnote Continued)

In light of the above, this action was

not brought to further the congressional

policy of facilitating access to the judicial

process for victims of civil rights violations

who might not otherwise be able to afford it.

Indeed, petitioner waited almost two years to

even seek attorneys’ fees and then submitted

a legally insufficient application (see post,

pp. 32-35).

(3)

Moreover, with respect to the City of

New York, petitioner did not, and could not,

state a claim under 42 U.S.C. §1983, i.e.,

she did not allege or establish that the City,

through official custom or policy, acted. to

deprive her of a constitutional right. Monell

v. Department of Social Services, 436 U.S.

(Footnote Continued)

ae Has not Converted The

Nature of this Action From

Trespass” (Rem. br., p. 18).

-30-

SS

658 (1978). Thus, following the City's

intervention in the public interest, ante,

pp. 5-6, petitioner never amended her

complaint to state a cause of action against

the City.

In any event, petitioner never

established any substantive liability by the

City on the merits, thereby precluding any

fee award against it. Kentucky v. Graham,

of Killeen, Texas, 775 F.2d 1349, 1351, 1354

(5th Cir.), reh. denied, 778 F.2d 790 (5th

Cir. 1985); Amnunziato v. The Gan, Inc.,

744 F.2d 244, 253 (2d Cir. 1984). Whereas

the Court of Appeals on remand allowed the

extremely limited relief, i.e., a possible

trespass of action against Group W for a

ten-month period and invalidating a minor

one of the State CATV Commission

regulations, nothing was directed as to the

-3l1-

City. Cf. Counsel v. Dow, 849 F.2d 731,

739-741 (2d Cir. 1988).1°

Finally, even if, arguendo, there was

no such bar to a fee award against the City,

it should be denied because the "special

circumstances" in this case, would render it

unjust. Newman v. Piggie Park Enterprises,

Inc., supra, 390 U.S. 402; see Northcross

v. Memphis Board of Education, 412 U.S.

427 (1973). In particular, the City's

extremely limited intervention role warranted

10We note that, in seeking attorneys’ fees

herein, petitioner stated below, without

equivocation, that the Teleprompter (Group

W Cable) defendants were "the real parties

in interest.” In this Court, the State of

New York expressly designated itself "...

the true party in interest ... since the issue

is the constitutionality of one of its statutes

which has statewide application and is of

vital public concern." Indeed, the Supreme

Court, New York County, found that

plaintiff's action was "... for all practical

purposes aimed at the Executive Law and the

State Commission on Cable Television and the

conduct of the Attorney General" (A39).

-32-

ei i ene

a denial of fees against it. See, e.f.,

Kelley vy. Metropolitan County Bd. of Educ.,

773 F.2d 677, 684-85 (6th Cir. 1985) (en

banc), cert. denied, 474 U.S. 1083 (1986)

(intervenors not liable for statutory fees

where "there is no _ evidence that the

intervenors in any way interfered with the

progress of the litigation") ; 14 Rose sy.

Nebraska, 748 F.2d 1258, 1264 (8th Cir.

1984), cert. denied, sub nom. Lutjeharms vy.

Rose, 474 U.S. 817 (1985) (where the state

vost tellingly, on remand in the Court of

Appeals, the City submitted a single 24 page

brief. It succinctly argued (as it had

throughout the action) that section 828(b) of

the Executive Law’ provided for just

compensation by requiring payment of a

"reasonable" amount which could

constitutionally be established by the State

Cable Commission. This is precisely what

the Court of Appeals held. In contrast,

petitioner submitted a 145-page main brief,

as well as very lengthy reply and sur-reply

briefs. Group W submitted briefs over 100

pages long, while the State's two briefs

numbered about 40 pages.

-33-

commissioner of education, the governor, and

the local school board had been found liable

for fees, the United States Court of Appeals

for the Eighth Circuit modified the award by

making the commissioner of education, who

had been the central actor, the sole party

liable for fees; the local school board was

merely doing what it had been told to do by

the commissioner, and the governor had

- absolutely no involvement in the disputed

acts).

(4)

A final reason for denying the writ is

that, even if, arguendo, petitioner was a

prevailing party for the purposes of a fee

award, her fee application was legally

insufficient thereby barring an award. See,

e.g., Blum yv. Stenson, 465 U.S. 886 (1984);

Hensley v. Eckerhart, 461 U.S. 424 (1983).

After petitioner waited an unreasonable and

prejudicial 17 months after the July 1983

-34-

Pa .

1h SNORE RU AE Tl ERO CTR

dismissal order on remittitur to make this

application (see, e.g., Baird v. Bellotti, 724

F.2d 1032 (1st Cir.), cert. denied, 467 U.S.

1227 (1984)), even then she failed to provide

the court with contemporaneous time records

to allow a determination of whether the hours

claimed were reasonably and _ productively

spent. Hensley v. Eckerhart, 461 U.S. at

437. After defendants City et al. opposed

her application on that basis, the two firms

submitted some minimal documentation, but

without any breakdown as to the separate

trespass and other claims litigated nor an

adequate description of the work performed.

Thus, in seeking compensation for some

3000 hours, the "joint application" on behalf

of two firms, petitioner's lead counsel,

representing her here, claimed 2000 hours,

while its "of counsel" firm claimed 1000

hours. There was no explanation of the

separate functioning of the two firms nor a

-35-

breakdown oof the work by — separate

successful and unsuccessful claims. Id. at

437; Copeland v. Marshall, 641 F.2d 880,

891-892 (D.C. Cir. 1980) (en banc)

(duplication found where attorneys

unreasonably doing same work, as in this

case). |

Indeed, the two supporting affirmations

reflected almost totally similar work after

1977, including the preparation and drafting

of briefs. For instance, for the work done

in the Court of Appeals on remand, the lead

counsel seeks payment for about 300 hours

(6 50-hour weeks), while the "of counsel"

firm seeks payment for about 450 hours (9

50-hour weeks). Clearly, they did not

prove by clear and convincing evidence that

750 hours or 4 months work was not

duplicative and excessive, where the New

York Court of Appeals rejected nearly all of

-36-

petitioner's continued claims of trespass,

statutory and constitutional flaws. !?

(5)

Based on all the above, and the very

narrowness of this case, petitioner's "chilling

effect" arguments lack substance.

Furthermore, petitioner does not, and

2 other insufficiencies included a failure to

give any professional background for many

individual lawyers nor paralegal

qualifications, and improperly seeking

paralegal fees based oon _ hourly _ rates

charged, rather than as expenses based on

wages paid. See, e.g., City of Detroit v.

Grinnell Corp., 495 F.2d 448, 473 (2d Cir.,

1974). Moreover, petitioner improperly

calculated the fees using her then current

hourly rates, rather than the historic rates

used in multi-year cases. New York

Association for Retarded Children v. Carey,

711 F.2d 1136, 1153 (2d Cir. 1983). Nor

was she entitled to her requested 15%

multiplier, Pennsylvania v. Delaware Valley

Citizens' Counsel for Clean Air., U.S.

__., 107 S.Ct. 3078, 3086 (1987); Blum y.

Stenson, 465 U.S. at 898-899, nor her

request for fees and expenses with respect

to the fee application (which she had not

sought below). New York Association for

Retarded Children v. ‘arey, 711 F.2d at

1148.

-37-

cannot, substantiate her claim that in some

unspecified manner the Court of Appeals on

remand "evaded" this Court's directive

(Pet., p. 22), and, obviously, she never

sought review by this Court.

So too, the narrowness of this case

presents no opportunity for this Court to

define further the concepts of a §1983 cause

of action and a §1988 “prevailing party”.

Indeed, this Court has given recent and

ample guidance in the area. See, e.gZ.,

North Carolina Dept. of Transportation v.

Crest Street Community Council, 479 U.S. 6,

107 S.Ct. 336 (1987); Hewitt v. Helms,

U.S. , 107 S.Ct. 2672 (1987); Kentucky

v. Graham, 473 U.S. 159 (1985); Williamson

County Regional Planning Commission v.

Hamilton, 473 U.S. 172 (1985). Similarly,

this case presents no opportunity for this

Court to examine the efficacy of interim fee

awards where, so far, petitioner has in

-38-

essence obtained only interlocutory rulings

which may effect a disposition on the merits.

Hanrahan vy. Hampton, supra, 446 U.S. at

759. Further, while this Court has rejected

a rule of strict proportionality of a fee

award based on the amount of damages a

civil rights plaintiff actually recovers, City

of Riverside v. Rivera, 477 U.S. 561

106 S.Ct. 2686, 2694 (1986), it nevertheless

held that the amount of damages is a

“certainly relevant" consideration to the

amount of fees awarded. Id. at 2694.

In conclusion, petitioner has failed to

demonstrate that she is a “prevailing party"

within the meaning of 42 U.S.C. §1988,

because, inter alia, she has never proved

any violation of her constitutional rights.

This Court upheld the Executive Law,

section 828, cable television statutory scheme

as constitutional, Loretto v. Teleprompter

Manhattan CATV Corp., 419 U.S. at 425,

-39-

and, as recognized by the Appellate

Division, the procedures for obtaining just

compensation are essentially the same ones

that have existed since the _ statute's

enactment in 1972 (Al3). The narrowness of

this case is clear, since it was brought

primarily as a trespass action, and

prosecuted as such after’ this Court's

decision on remand (see, e.g., Petitioner's

Br. on Remand in Court of Appeals, p. 18,

stating "The Supreme Court's Decision that

there has been a ‘Taking’ ... Has not

Converted the Nature of this Action From

Trespass"). In light of all the above,

therefore, the petition should be denied.

-40-

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

August 22, 1988

Respectfully submitted,

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Respondent

City of New York.

LEONARD J. KOERNER, *

PAMELA SEIDER DOLGOW,

ELIZABETH S. NATRELLA,

of Counsel.

*Attorney of Record

-4l1-