Reply Brief — Kaimowitz v. City of Orlando

No. 03-1267 —t

IN THE

Supreme Court of the United States

GABE KAIMOWITZ,

Petitioner,

vs

ORLANDO, FL; RICK BERNHARDT, and ORLANDO

NEIGHBORHOOD IMPROVEMENT CORPORATION,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITIONER’S REPLY BRIEF

H. Gabriel Kaimowitz

Attorney and Petitioner Pro Se

4411 S.W. 34" St., #1305

Gainesville, FL 32608

(352) 375-2670

TABLE OF CONTENTS

Page

Te Fs Fr es cin ncrcesterevincesiounsnamensetensanestes i

Bs HR Benicia daoiaicivasncesesiioosupbehanaenenseimeineaniiitin ]

ADDITIONAL STATUTE INVOLVED............:cesseeseeeees 6

I. THIS COURT HAS JURISDICTION.....................0000 6

II. THIS PETITION REQUIRES SCRUTINY

MANDATED IN LILJEBERG. v HEALTH

SERVICES ACQUISITION CORPORATION..........+++: 7

III. SUITABLE COUNSEL CAN BE FOUND

TO ARGUE THESE IMPORTANT ISSUES............ 10

ee aicatstonnennatvalcnkeniadinieheuvesnniinnelinnmentonecinet 10

TABLE OF AUTHORITIES

CASES CITED:

Clark v. Florida,

AF Re Ce Ee aie ascrtesenstsicncinauiscinssenicneiel 8

Elk Grove Unified Sch. Dist. v. Newdow,

I SI iccssieiisnsanideadiivnaninkencnnasiendinnnatiiohls 10

Haitian Refugee Center, Inc., v. Baker,

TR ee 2, | ee ene ene 8

Kleem v. Immigration and Naturalization Services,

ce 8, eS NET ER TET 6

Koch v. Herron,

GS Cs PEE Bcchiscivnecscceniadaninisitenintasenicenmuaneee 2

Liljeberg v. Health Services Acquisition Corp.,

BOGUS. BOT CT aisiscenesenseiacicianscentonsnnntasctin 19

Missouri v. Jenkins,

GPF: BPE Pe ini cceeniieiiitceniinnaada 6

Toledo Scale Company v. Computing Scale Company,

ROU 8S. FIP CR i ceccncticcncsinnetiininetnimtaniinnee: 8

STATUTES AND RULES CITED

Be eA. Bak PD a ssccnnnnnconsnnnciioorniencnnientensmamamanat 6

BG BR ei nncomnscscnsniichinsicnmeapenaanaaiamaaamaaae 8

at STRA 1. BOF kicincsenicneimiaaenn 6

OTHER AUTHORITY CITED

The Orlando Sentinel, including items below:

http://www.orlandosentinel.cOmM................:csccseeseeceseeeeesees 3

B. Kassab, “Old loans close in on landlords,”

The Orlando Sentinel, Apr. 6, 2004............:::cccceees 4

Editorial, “A contract is a contract,”

The Orlando Sentinel, Apr. 12, 2004.............::c00000 4

H. P. Curtis, “Officials launch new courthouse,”

The Orlando Sentinel, Apr. 6, 2004..........::::ccceeee0 2

li

No. 03-1267

IN THE SUPREME COURT OF THE UNITED STATES

GABE KAIMOWITZ,

Petitioner,

Vv.

ORLANDO, FL; RICK BERNHARDT, and ORLANDO

NEIGHBORHOOD IMPROVEMENT CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITIONER’S REPLY BRIEF

INTRODUCTION

In September 1981, while this Court was in recess,

attorneys for New York City, Petitioner here and two co-

counsel appeared before Justice Thurgood Marshall.

Petitioner asked him to consider that day’s front page

tabloid newspaper announcements of postponement of a

mayoral primary, as a basis for denying relief to the City. A

three-judge court below had ordered the postponement,

because New York failed to comply with a statutory

requirement.

The City filed an emergency petition to stay the

lower court decision, and have the election go forward on

schedule. Petitioner argued such a ruling would confuse

voters with new headlines and cause many to stay away.

Justice Marshall contacted all other members except

the Chief Justice who was unavailable. Those voting

unanimously denied the City’s petition, Koch v. Herron, 453

U.S. 946 (1981). In support of this petition, Petitioner asks

this Court to consider several articles, in The Orlando

Sentinel this month. Full articles cited below may be found

at: http://www.orlandosentinel.com/ through its archives.

Earlier news reports are contained in the Appendix with the

petition. See, e.g., Appendix, pp. 91-a; 96-a, 97-a, 111-a,

112-a, hereafter by page number only.

No exception was taken to the news reports, in the

only response filed for some—but not all—of the Respondents,

(hence Orlando Brief here) despite a claim to the contrary on

the cover. No response has been filed for the Orlando

Neighborhood Improvement Corp., though one of two

questions presented concerns that enterprise.

That cover is only the tip of the iceberg of misleading

information about issues, facts, and applicable law in the

Orlando Brief by Orlando’s counsel here. See discussion,

infra. He took over representation for Orlando in the ninth

year of this litigation, in November 2002, and responded

only sporadically—e.g., he filed no response after Petitioner

fleshed out for the district judge the bases for the allegations

cited in the Orlando Brief, p. 8 (see relevant Order, p. 5-a).

The Orlando Brief, pp. 5-6, does echo judicial

findings that no Respondent knowingly made a false claim to

the United States in violation of the False Claims Act. The

news reports illustrate why only such a glittering generality

could cover the millions lost by U.S. taxpayers. Orlando was

never tried seriously to recover them, because funds wasted

were issued from the U.S. treasury based on false claims.

The false claims were laid out precisely in the complaint.

They were provided in each record excerpt on appeal

thereafter, 1995-2002. The news reports flesh out one.

“C. Orlando has certified falsely that it is in full

compliance with HUD (U.S. Department of Housing

and Urban Development) regulations and guidelines,

though it has not kept, or refused in 1993 to reveal

...the documentation for grants received from HUD

for its rental rehabilitation programs....The City is

required to do (so) upon appropriate demand, 24

C.F.R. §12.14(c)(2). See also Sub-part C-

Disclosure by Applicants, 24 C.F.R. §12.30, et seq

i. A bare-bones list of sub-recipients of all such

multi-family rental rehabilitation (RPP) loans was

given to the Qui Tam Plaintiff in June 1993, without

RPP amounts. A list of those amounts was obtained

_ by him from Stella Lewis, in her private capacity.

She is a member of the Orlando Board of Zoning

Adjustment.

ii. Lewis determined that a “slumlord” Philip

Cowherd has received $311,735 of the $1,081,569

distributed for RPP purposes between 1985 and

1993. He got assistance for 19 of the 74 rental

rehab projects funded in that period of time.

iii. In 1993, Cowherd was reported to own more

than 20 multi-family rental facilities in the 99%

African-American Holden-Parramore neighborhood.

iv. In 1993, Cowherd served Orlando as the lone

white private citizen who appeared for a photo

opportunity with other members appointed by the

City to a rump board chosen by Orlando to develop

Parramore Heritage Renovation Project (“PHRP.”).

v. In 1993, Cowherd also served on an advisory

committee considering CDBG grants for the PHRP

and other projects.”

Complaint, supra, at p. 6.

U2

“Orlando Mayor Buddy Dyer wants a dozen

Parramore landlords to repay $318,617 the city

loaned them more than 10 years ago to help renovate

their rental property....Already, the city has lost out

on $267,597, in similar loans after failing to collect

before the five-year statute of limitations

lapsed....The city began the program in 1985 and

gave out 73 no-interest, 10-year loans through 1993.

The money came through the U.S. Department of

Housing and Urban Development....Phil Cowherd,

who with 11 loans received more than any other

property owner, hasn’t paid back any of them. He’s

off the hook for six of them, worth $90,880,

because the statute of limitations ran out. Now the

city hopes to get the $43,772, owed for the

remaining five. Cowherd, who campaigned against

Dyer’s re-election last month...questioned the timing

of the move. He says he, too, was told the city

would never enforce payment.”

B. Kassab, “Old loans close in on landlords,”

The Orlando Sentinel, Apr. 6, 2004, pp. B-1, B-4.

“Parramore landlords who received renovations

loans from Orlando deserve no sympathy now that

the city is demanding repayment....In the past,

Orlando officials have been lax in enforcing the

repayment terms in various programs designed to

help small businesses. That explains how the city

allowed the statute of limitations to elapse on

$267,000 in similar renovation loans....The city’s

credibility depends on enforcing the terms of its

contracts.”

Editorial, “A contract is a contract,”

The Orlando Sentinel, Apr. 12, 2004, p. A-13.

iain tabbed ett _ dei eo,

Such reports serve to illustrate the harm done (1) in fact

and (2) to the appearance of justice, when the U.S. Court of

Appeals for the 11" Circuit looked the other way, while

Judge Patricia C. Fawsett absolved Respondents of any

wrongdoing, 1995-2002. Why did she do so?

“Shovels hit dirt Monday to kick off construction

of Orlando’s new $86 million federal courthouse.

The 10 a.m. ceremony ended 12 years of planning,

gentle arm-twisting and begging by Middle District

of Florida Chief Judge Patricia C. Fawsett and other

judges and federal employees.... The addition comes

years after it was first requested to keep pace with

Central Florida’s population boom and the rise in

criminal and civil cases that followed. Congress

approved $79 million for the project in 2002 and

another $7.2 million in 2003..... This year (the court)

will handle 8,000 cases, Fawsett said in her address.

Among the speakers were Orlando Mayor Buddy

Dyer and City Commissioner Daisy Lynum, who

said the complex—including the Florida A&M

University College of Law being built next

door—would complement ongoing revitalization of

the Parramore district.”

H. P. Curtis, “Officials launch new courthouse,”

The Orlando Sentinel, Apr. 6, 2004, p. B4.

Not reported were the ex parte communications with

Defendant Richard Bernhardt, Tom Kohler, etc., for

Orlando by Judge Fawsett and other jurists. See pp. 94-a

through 112-a. Judges shared a common goal with

Defendants, to create appropriate surroundings and structure

in a poor black area for the courthouse complex. So Judge

Fawsett found no merit in any paper for the plaintiffs, no

matter what it included. She did not allow them a hearing.

With several Eleventh Circuit judges also involved

in those ex parte communications, that appeals court

sanctioned a departure from the accepted and usual course

of judicial proceedings, so as to call for an exercise of this

Court’s supervisory power, S.Ct.R. 10.

ADDITIONAL STATUTE INVOLVED

28 U.S.C. §2101(c) states: “Any other appeal or any

writ of certiorari intended to bring any judgment or decree

in any civil action, suit or proceeding before the Supreme

Court for review shall be taken or applied for within ninety

days after the entry of such judgment or decree. A justice of

the Supreme Court, for good cause shown, may extend the

time for applying for a writ of certiorari for a period not

exceeding sixty days.”

I. THIS COURT HAS JURISDICTION.

The Orlando Brief, p. 2, cites four U.S. Supreme

Court denials of certiorari, to suggest that Petitioner filed

this action in untimely fashion after 90 days. No mention is

made of the aforementioned statute, though three denials cite

it specifically, the fourth by implication.

Relying on the last sentence, Petitioner sought an

extension, “for good cause shown,” and received it from

Circuit Justice Anthony Kennedy, p. 115-a. Petitioner

needed such extension, to make certain that he could make

a full presentation, even if his petition were due within 90

days from dismissal of the appeal, rather than from action on

a petition for rehearing pursuant to Rule 41 (a) of the Federal

Rules of Appellate Procedure, pp. 1-a/2-a.. See Missouri v.

Jenkins, 497 U.S. 33, 46-50 (1990). Such extensions are not

granted as a matter of course, Kleem v. Immigration and

Naturalization Service, 479 U.S. 1308, 1309

(1986)(Extension denial by Circuit Justice Antonin Scalia.)

Respondents could have opposed the application for

an extension of time but none of them did so. The petition

was timely filed within the time allowed by the Circuit

Justice. This Court has jurisdiction to consider the merits.

II. THIS PETITION REQUIRES SCRUTINY .

MANDATED IN LILJEBERG v. HEALTH

SERVICES ACQUISITION CORPORATION.

The Orlando Brief, p. 13, does cite Liljeberg v.

Health Services Acquisition Corporation, 846 U.S. 847

(1988), but primarily to show apparently that Judge Fawsett

was right in not stepping aside from 1995-2003 on the basis

of “unsupported, irrational or highly tenuous speculation,”

id., at 859-60. The Orlando Brief does not address the

undisclosed ex parte communications Judge Fawsett and the

other jurists had with the Bernhardt, Kohler and other

Orlando employees, at invitation-only meetings without

notice to Plaintiffs. See, e.g., pp. 95-a, 101-a/104-a. Those

surfaced only after she did step aside sua sponte, because she

claimed she had been informed that an unidentified

investment in which she held an undetermined interest would

undertake negotiations with the City of Orlando about an

undisclosed subject in the near future (p.74-a). She had used

the same reason to step aside in a related False Claims Act

case three months earlier (p. 69-a).

The aforementioned ex parte communications giving

rise to this petition are not mentioned at all in the Orlando

Brief. Indeed, the only mention of ex parte communications

is on the same page 13. A lower court case is cited to

support the proposition that a judge should not step aside,

because of conclusory allegations; further, the plaintiff could

not identify the ex parte communicants. The Orlando Brief

is replete with a dozen other similar citations from various

circuits being offered as black letter law binding this Court.

The citations to this Court’s decisions also are

misleading. Petitioner already has noted four cited in the

Orlando Brief, p. 2, without notation that each was a per

curiam statement in denial of a petition for writ of certiorari.

It is important to emphasize that the denial of the

petition for writ of certiorari is not a ruling on any of

the unsettled and important questions of law

presented in the petition. See Singleton v.

Commissioner, 439 U.S. 940, 942 (1978).

Haitian Refugee Center, Inc., v. Baker, 501 U.S. 1122

(1992)(Stevens, J. respecting denial of certiorari).

In the Orlando Brief, p. 1, Baker is cited for a

desired application of Rule 10, S. Ct. R. to block the petition

here. In fact, the only mention of Rule 10 occurs in a

comment by one justice who alone should have been cited,

“Haitian Refugee Center, Inc., v. Baker, 501 U.S. 1122,

1123 (1992)(Thomas J., respecting denial of certiorari).”

Another misleading cite is offered to support a

demand for sanctions here. See the Orlando Brief at p. 15.

In addition to an applicable court rule, that Brief cites and

quotes from what appears to be the Court’s decision in

Clark v. Florida, 475 U.S. 1134 (1986). But the Court only

dismissed for want of jurisdiction or, “treating the papers

whereon the appeal was taken as a petition for writ of

certiorari, certiorari is denied.” The opinion is that of only

one justice, Chief Justice Warren Burger, at pp. 1134-1138.

The Orlando Brief cites, at p. 12, Toledo Scale

Company v. Computing Scale Company, 261 U.S. 399, 425

(1923) to show that the U.S. Supreme Court is prevented

from taking jurisdiction “by a most salutary rule of law

which after parties have had a full and fair opportunity to

prepare their case, refuses to permit them to drag out

litigation by bringing in new evidence which with due

diligence they ought to have discovered before the hearing.”

With due diligence, should Petitioner have been able

to discover Judge Fawsett’s hidden agenda to get a new

federal courthouse to herliking when she learned by October

3, 1996 that money had become available for that purpose?

See Petition for Writ of Certiorari, pp. 19, 89-a. Judge

Fawsett a few weeks later granted judgment to all

Respondents on the same day the representative of the U.S.

Department of Justice was faxing for information to prepare

for jury trial a week later. See Petition for Writ of

Certiorari, p. 10. Before any fees were awarded against

Petitioner, on appeal, and certainly below, should he have

been able to find out what Eleventh Circuit representatives

knew about ongoing discussions in the spring of 1998

between Judge Fawsett and at least one other judge and

Orlando’s Bernhardt and Kohler at invitation-only meetings?

Orlando withheld that correspondence until March 2003.

What the Orlando Brief fails to do is provide any

meaningful response to the question presented here: Is

Petitioner entitled to relief, because of “* a systematic

derogation of due process of law by a cover up of ex parte

communications without notice to him, * between and among

trial and appellate judges, court personnel and defendant

Orlando agents including Bernhardt, (at) private meetings

held (during a period of) several years....e about a new

federal courthouse discussed in the context of municipal

planning goals for the surrounding historically black

Southwest Quarter of the city?” See Petition, p. i.

The ex parte communications at issue here dwarf by

comparison those which required a disqualification as soon

as possible after they were discovered, in Liljeberg, supra.

Under these extraordinary circumstances, this Court should

order judgments entered below-to date—to be vacated, to

assure that justice will satisfy the appearance of justice,

Liljeberg, 486 U.S. supra at 863-864.

Ill. SUITABLE COUNSEL CAN BE FOUND

TO ARGUE THESE IMPORTANT ISSUES.

In light of the Orlando Brief, submitted by an

attorney who claims to be a member of the Bar of this Court,

Petitioner fears that his petition could be denied. He is

disfavored by appearing here pro se Although Petitioner

was heartened by this Court’s granting of a motion to an

attorney to proceed pro se, or pro hac vice, albeit as a

respondent, E/k Grove Unified Sch. Dist. v. Newdow, #02-

1642 (Motion granted Dec. 1, 2003), he already actively

seeks representation by an experienced member of the Bar of

this Court to address the questions presented concerning the

effect on judgments of years of revelations of ex parte

communications between judges and Orlando representatives

first disclosed in 2003, if this petition for a writ is granted.

Petitioner obviously cannot speak for Respondents’

legal representation, but the current open controversy about

the waste of federal rental housing rehab funds, supra, at p.

4, first exposed in his complaint, should prompt fresh review

of these proceedings by the City’s legal arm. To that end,

Petitioner is serving copies of this Brief upon the Orlando

City Attorney who took office last year for a new mayor.

CONCLUSION

For the reasons set forth in the petition and this

supplementary and responsive brief, Petitioner seeks review

of the questions presented concerning Orlando Respondents,

and separately, Orlando Neighborhood Improvement Corp.

Respectfully submitted,

H. GABRIEL KAIMOWITZ, Esq.

4411 S.W. 34" St., #1305

Gainesville, FL 32608

(352) 375-2670

Attorney and Petitioner Pro Se

10