# Reply Brief — Kaimowitz v. City of Orlando

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1184%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1042

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1184%3A3. Public record. Not legal advice.