Petition for Writ of Certiorari — Kirsh v. City of New York

No. 98 439 SEP 1498)

‘IN THE OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1997

MARA KIRSH and JOSEPH KIRSH,

i Petitioners,

THE CITY OF NEW YORK, THE COMMISSIONER

OF THE DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW YORK,

DAVID BRADLEY MANAGEMENT CoO.,

DAVID WEISS, DEBBIE LEUNG, JOHN WELLS,

SHEILA SAMMS, JANE AND JOHN DOE,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD P. CARO, ESQ.

3 East Quincy Strect

Riverside, Illinois 60546

(708) 447-5434

Counsel of Record

for Petitioners

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

ae

QUESTIONS PRESENTED

1. Whether A Court Appointed Administrator Acted “Under Color

of Law” Within The Meaning Of 42 U.S.C. § 1983 Where He

Was Appointed Pursuant To A State Statute Upon Application

Of A City Agency To Manage A Small Apartment Building To

Do Approximately $54,000.00 In Emergency Repairs and To

Penalize The Owners For Their Harassing Of Tenants, And

Without Prior Court Authorization And Without The Owners’

Prior Knowledge And Consent, Removes and Disposes Of All

Their Personal Property And Leases Out Their Home To

Strangers For Extended Periods Of Time?

2. Whether The Allegations That The City of New York (HPD):

(A) Was Implementing The 7A Statute To Take Property

Away From Its Lawful Owners and Not Return It To

Them,

(B) Had Failed To Properly Instruct 7A Administrators

And HPD Managers Respecting Statutory Requirements,

And Implementation Of The Terms And Conditions Set

Forth In The 7A Judgment, And The Rights Of The

Owners Of The Property And The Duties Owned The

Owners While Their Property Was in 7A Administration,

And

(C) With Respect To The Kirshes’ Property Had Regular-

ly Disregarded The Terms And Conditions Of The 7A

Judgment and Statute, Acquiesced In The 7A Administra-

tors’ Routine Disregard Of And Violations Of The Terms

and Conditions Of The 7A Judgment, And

(D) Failed To Take Any Corrective Action When It

Learned Of The Unlawful And Unconstitutional Actions of

the 7A Administrator,

Sufficiently Alleged A Predicate For Municipal Liability Under

42 U.S.C. § 1983.

y is

OEE OE Ree” A Ee a ee OE, Sone MR Te Oe ee

Whether In The Absence Of Prior Court Authorization Or The

Owners’ Consent, The 7A Administrator’s Repeated Entries

Into The Kirshes’ Home, Removal And Disposition Of All

Their Property Without Prior Or After The Fact Notice, And

The Leasing Of Their Home To Strangers Violated The

Kirshes’ Constitutional Rights And Whether The Kirshes Had

To First Exhaust State Remedies Where The 7A Statute Ex-

empted The City From Liability And The 7A Administrator

From Any Personal Liability?

Whether The Imposition Of 7A Administration For The Pur-

pose Of Punishing The Kirshes For Harassing Their Tenants

For An Indefinite Period And Putting The Burden On Them To

Justify The Return Of Their Property And Home To Them Was

In Violation Of The Kirshes’ Constitutional Rights Under The

Fifth And Eighth Amendments?

Whether The Kirshes’ Injury Was Sufficient To Satisfy Stand-

ing Requirements For Them To Challenge The Constitutionality

Of The 7A Statute On Its Face Or As Applied?

in

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oa 5 5 bin obi 8:4 Sp ae eee eKa Ns

ERS 8 nr i

B. Proceedings In The District Court .............

C. The Decision of The Second Circuit ...........

Reasons For Granting The Writ:

I. There’s A Conflict Among The Circuits Respect-

ing 1983 Liability Of Persons Appointed By

Courts As To Whether They Are Acting Under

ce |_ESTS I eee Cee Pee

II. The Second Circuit’s Decision Conflicts With

Decisions Of This Court On Important Questions

so OR Pri ee sy Oe eee

A. The Decision Below That There Was No

Adequate Predicate For Municipal Liability

Conflicts With And Fails To Follow Deci-

iv

B. The Lower Court’s Rulings With Respect to

Exhaustion, Finality, Ripeness, Taking And

Standing Are Contrary To And Inconsistent

With Decisions Of This Court ............ 26

Ill. The Decision That The Punishment Is Not Con-

trary To Due Process And the Eighth Amendment

Is Inconsistent With Decisions Of This Court And-

Other Circuits And Raises Issues This Court

Se PUG. uisik baie Nga A ees 28

SUNN i. 6S. baa co hi 45h ea a i aie hae cee

APPENDICES

PAGE

A. Second Circuit Summary Order, June 15, 1998 ...... A-l

B. District Court’s Opinion, June 27, 1995, granting

in part City Defendants’ Motion To Dismiss ........ B-1

C. District Court’s Opinion, November 15, 1995,

dismissing Equal Protection Claim ............... C-1

D. District Court’s Opinion, July 7, 1997, granting

summary judgment dismissing Action, denying

leave to amend and additional discovery .......... D-1

E. Article 7A Real Property Actions and Procedures

Law Of The State Of New York ............02--- E-1

F. Cristal Get. cos wanes Ss Weed... ooo F-]

G. Proposed Amended Complaint ................. G-1

Vv

TABLE OF CITATIONS

Cases PAGE(S)

A.B. Small Co. v. Am. Sugar Refining Co.,

Pe WY IP ROUUNOD al ote PUES Bases dcestevens 29

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ...... 27

Austin v. United States, 509 U.S. 602 (1993) ......... 28, 29

Baggett v. Bullitt, 377 U.S. 360 (1964) ............... 29

Baldwin v. New Y ork, 399 U.S. 66 (1970) ............. 28

Ballew v. Georgia, 435 U.S. 223 (1978) ............... 28

Bennett v. Spear, $20 U.S. 154 (1997) .............05. 27

Blum v. Yaresky, 457 U.S. 991 (1982) .............. 21, 22

Board of the City Commissioner of Bryan Cty.

v. Oklahoma, 520 U.S. 397 (1987) ............... 24

Bouie v. City of Columbia, 378 U.S. 347 (1964) ......... 29

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ...... 24

County of Sacramento v. Lewis, ___ U.S. __.,

118 S. Ct. 1708, 140 L.Ed.2d 1043 (1998) .......... 25

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, Ca.,

et 6 SARS SRS ee ae © ea 27

Gebser v. Lago Vista Indep. Sch. Dis., __ U.S.

__., 118 S. Ct. 1989, 141 L.Ed.2d 277 (1998) ....... 25

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ........... 29

_———s

a

7

vi

Haygood v. Y ounger, 769 F.2d 1350 (9th Cir. 1985)

(en banc), cert. denied, 478 U.S. 1020 (1986) ........ 28

Heck v. Humphrey, 512 U.S. 477 (1994) .........0.0005 26

Hohensee v. Grier, 373 F. Supp. 1358 (M.D. Pa.

1974), aff'd, 524 F.2d 1403 (3rd Cir.),

cert. denied, 426 U.S. 940 (1975) ................ 19

Jett v. Dallas Indep. Sch. Dis., 491 U.S. 701 (1989) ...... 21

Kirsh v. Michetti, 787 F. Supp. 403 (S.D.N.Y. 1992) ....... 3

Leatherman v. Tarrant Cty. Narcotics Intelligence

& Coordination Unit, 507 U.S. 163 (1993) .......... 25

Lebos v. Judges of Superior Court, Santa Clara Cty.,

Pee Fie OIG CEL FD eck saves ceccens ces 20

Loyd v. Loyd, 731 F.2d 393 (7th Cir. 1984) ............ 19

Lugar v. Edmondson Oil Co., Inc.,

Gor Se PE CE a oie cawk bus bbe etn 20

Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) ....... 19

Monell v. N.Y.C. Dept. of Social Services,

» MOB ARB Gree ono 0 Soins Fie RA Oe ce 24

Monroe v. Pape, 365 U.S. 167 (1961) ................ 26

Morse v. Republican Party of Va, 517 U.S. 186,

116 S. Ct. 1186, 134 L.Ed.2d 347 (1996) ........... 20

Penbaur v. Cincinnati, 475 U.S. 469 (1986) ............ 21

Polk County v. Dodson, 454 U.S. 312 (1981) ........... 20

vii

Rendell-Baker v. Kohn, 357 U.S. 830 (1982) ........... 22

Sample v. Decks, 885 F.2d 1099 (3rd Cir. 1989) ......... 28

Solem v. Helm, 463 U.S. 277 (1983) .........6--000055 29

State v. Huelsman, 588 P.2d 394 (Haw. 1988) .......... 28

Sutum v. Tahoe Reg. Plan. Agency, 520 U.S. 154,

117 S. Ct. 1159, 137 L.Ed.2d 980 (1997) ........... 27

Thomas S. v. Morrow, 781 F.2d (4th Cir.),

cert. denied, 476 U.S. 1124 (1986) ............... 19

Tower v. Glover, 467 U.S. 914 (1984) ...............-. 22

United States v. Bajakajian, ___ U.S. __.,

118 S. Ct. 2028, 141 L.Ed.2d 314 (1998) ........... 29

United States v. Halper, 490 U.S. 435 (1989) ........... 28

United States v. Int’l Brotherhood Of Teamsters,

Chauffeurs, Warehousemen & Helpers of Am.,

AFL-CIO, 941 F.2d 1292 (2d Cir. 1991) ........... 19

United States v. James Daniel Good Real Property,

Rt tk pL ae Wek ce ee we ee bee 26

United States v. Kirsh, 54 F.3d 1062 (2d Cir.),

“eB Bik a ow... ire 11

West v. Atkins, 487 U.S. 42 (1988) ............--255- 20

Wyast v. Cole, 504 U.S. 158 (1992) .........---- 2 eee 22

Zinermon v. Burch, 494 U.S. 113 (1990) ............-- 26

Viii

Constitution and Statutes

Fourth Amendment to U.S. Constitution ............... 14

Fifth Amendment to U.S. Constitution ..... 14, 16, 17, 28, 29

Eighth Amendment to U.S. Constitution .......... 14, 28, 29

Ninth Amendment to U.S. Constitution ............... 14

Fourteenth Amendment to U.S. Constitution ............ 14

ME Us GAGS no ove EWC RE ESE SS ON TES O passim

Article 7A of the Real Property and Procedures

Law of the State of New York ............... passim

a A Ar i a or ee ae eri ee ees ee 2

OE TIS 5 GAS TCR ah SS 5, 6, 8

Civil Practice Law Rules of the State of

Se Ce aE 0 wie SRS a a eet 10

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Mara Kirsh and Joseph Kirsh, respectfully petition for

a writ of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit.

OPINIONS BELOW

The United States Court of Appeals for The Second Circuit sum-

marily affirmed the judgment of the United States District Court for

the Southern District of New York (Sweet, D.J.) on the basis of the

District Court’s decisions. __ F.3d __ (June 15, 1998). The

Second Circuit’s Order Affirming the District Court and the three

decisions of the District Court (1995 WL 383236, 1995 WL

679242, and 1997 WL 375684) are reproduced as Appendices A, B,

C, and D.

STATEMENT OF JURISDICTION

This Court has jurisdiction of the Petition and the orders, de-

cisions and judgments for which review is being sought pursuant to

28 U.S.C. § 1254 and Supreme Court Rule 13.

STATEMENT OF THE CASE

A. Summary Of The Facts

1. The 7A Statute And Overview Of The Facts

In 1965 New York State enacted a special statute to deal with

dangerous conditions in multiple dwellings of five or units for New

York City and the Counties of Nassau, Suffolk, Rockland and West-

chester. The statute, Article 7A of the Real Property Actions and

Procedures Law of the State of New York (“RPAPL”) §§ 769-82,’

allows a municipality or the tenants of a building to apply to place

| The relevant provisions of the 7A statute are reproduced in Appendix E.

2

a building under 7A administration to do emergency repairs nec-

essary to protect the life, health and safety of the residents. Upon

completion of the needed repairs, the statute contemplates termina-

tion of the 7A Administration with return of managerial control of

the property to its rightful owner, In 1982 Section 770 of the 7A

Statute was amended to allow a 7A proceeding to be initiated for “a

course of conduct by the owner or his agents of harassment,’ illegal

eviction, continued deprivation of services or other acts dangerous

to life, health and safety.”

This case concerns the application of this statute by the City of

New York and the wrongful, consistent disregard by the City and

the Administrators it had selected of the very terms and conditions

set by the court in the 7A Judgment. As a result Mara and Joseph

Kirsh have suffered egregious deprivations of their fundamental

constitutional rights, both property and personal.

On March 1, 1988, upon the application of the Commissioner of

the Department of Housing Preservation and Development of the

City of New York (“HPD”), the Kirshes’ property was placed in 7A

Administration to do $54,000.00 in emergency repairs’ and an

extended period of 7A Administration was imposed at the City’s

request as punishment for their alleged harassing of their tenants*

for a period not shorter than five years.°

> The acts constituting “harassment” were not defined in the 7A statute.

* Appeal Appendix Vol. I at 813, and 48 at 815. Hereinafter the Appeal

Appendix shall be referred to as “R.”

* One of the alleged acts of harassment was the banging on a tenant’s

apartment door late at night which was presumed to have been done by the

Kirshes.

* HPD had instituted an in-rem action in the Civil Court of the City of

New York, Housing Part, on or about July 27, 1987. The Kirshes’ request

for a jury trial was denied and they were not allowed any discovery.

3

In August 1988, Mara Kirsh was enjoined from going within

mile of the building while the property was in 7A Administration®

and HPD advised the Kirshes that the injunction also applied to

Joseph Kirsh. Since the Kirshes lived in the building, their home

being the ground floor rooms,’ and being denied any part of the

rental income for personal daily living expenses and basic needs, the

bar was especially punitive, onerous and impoverishing for the

Kirshes.

Although more than ten (10) years have elapsed since their prop-

erty was placed in 7A Administration, the City has not returned

control of their property to them and they still can’t go home and

have never been paid any surpius money.® They are, consequently,

still being punished and in September 1994 they learned that HPD

stated that it did not intend for them to ever get control of their

property back.”

° HPD had petitioned the court to hold Mara Kirsh in criminal contempt

for interfering with the Administrator. The facts are set forth in Kirsh v.

Michetti, 787 F. Supp. 403, 404-05 (S.D.N.Y. 1992).

? The 7A Judgment allowed the Kirshes to have exclusive use of the

ground floor rooms without having to pay rent. R-II at 976. (Affidavit of

HPD Official Frank Vera.)

* The 7A Judgment set forth the priority of expenditures that could be

made after the emergency repairs for which 7A administration was im-

posed. Included in this list was payment of the balance of money left (the

“surplus”) to the owners. R-I at 36-37. Plaintiffs estimated that as of

September 1996 approximately $500,000.00 in rental income have been

received, the disbursement of which had not yet been accounted for—at

least to them, The emergency repairs for which the 7A Administration was

imposed to correct were deemed by the state court to have been long

completed by the time it ordered the property taxes to be paid in Septem-

ber 1991. (Statements of N.Y.S. Supreme Court Justice Paula J. Omansky,

OR-II at 848.)

* In September 1994, Mara Kirsh’s mother inquired of New York City’s

Small Property Owner’s Advocate when the property would be taken out

of 7A Administration and returned to the daughter and son-in-law and, in

response to her inquiry, she was subsequently informed that according to

HPD the Kirshes would never get their building back. (R-I at 352-53.) This

(continued...)

4

Over the years the Kirshes complained to HPD and the court,

basically to no avail, that the terms and conditions of the 7A Judg-

ment were not being adhered to by the 7A Administrators. For

example monies were being expended in violation of the decree’s

“restrictions and required court authorization wasn’t being sought. In

addition property taxes weren’t being paid, as the 7A Judgment

required,'° and surplus monies were not paid over to the Kirshes,''

also as the decree required.

The 7A Judgment also required the Administrator to file monthly

reports with the court and to personally appear before the court at

intervals not less than 60 days. Notwithstanding, the monthly reports

were not filed with the court and the Kirshes were also not being

served with copies of the monthly reports and the required court

appearances did not take place. Though the Kirshes complained to

the Administrators, HPD and to the court, the disregard of these re-

quirements of the 7A Judgment continued uncorrected and, in fact,

with HPD’s acquiescence, if not approval, as more fully explained

below.

In October 1994 the Kirshes discovered that in 1993 the then 7A

Administrator, without notice to the Kirshes and without their con-

sent, and without applying to the court, removed and disposed of all

of their personal property! They further discovered that in early

* (...continued)

confirmed and was consistent with an announcement made shortly before

HPD filed its 7A Petition. (R-II at 813-14.) At a press conference held on

July 13, 1987, a high City official announced that the City intended to take

the Kirshes’ property from them and never return it to them.(R-II at 908.)

Two weeks later, HPD filed its 7A Petition.

‘© In response to one of their complaints, the court ordered the taxes to be

paid and the property removed from the City’s in rem list of properties

with delinquent taxes. R-II at 845, 848-57. The taxes were subsequently

again not paid and the property again placed on the in rem list.

'' The building’s rental income was the Kirshes’ sole source of income

and the denial of any part of that income for their daily living expenses

and basic needs resulted in their impoverishment and contributed to their

decline in health.

5

1994, the 7A Administrator had rented out their home to strangers.

Needless to say this too was done without the Kirshes’ prior knowl-

edge or consent, and without court authorization.

While there was some question of when HPD first knew, or

should have known about these actions, by April 1994 HPD ad-

mitted it knew what had happened. Notwithstanding, HPD didn’t

take any corrective action and didn’t even notify the Kirshes'* or the

court of the 7A Administrator’s wrongful actions or seek his re-

moval. After the Kirshes learned what happened, they attempted to

get HPD to take corrective action, and when that failed, sought, to

no avail, assistance from the Office of Corporation Counsel for the

City of New York and from the Office of New York City’s Mayor.

The Kirshes then instituted an action in the United States District

Court for the Southern District of New York in November 1994

pursuant to 42 U.S.C. § 1983 against the City, HPD officials and

the 7A Administrators. Relief was sought in federal court rather

than in state court because the 7A statute in Section 778 immunizes

the City from liability for the acts of the 7A Administrator and it

exempts the 7A Administrator from personal liability.

2. HPD And The 7A Administrators

Under Section 778, subpar. 5, HPD establishes “the rules and

regulations regarding criteria for the selection of [7A] administra-

tors” and the court required is to appoint as 7A Administrators

persons from HPD’s list of qualified persons. HPD provides a

mandatory 7A training course for the prospective administrators and

has established the format and requirements for the 7A Administra-

tor’s monthly report and accounting, which under the 7A Judgment

the 7A Administrator is required to comply with. The 7A Adminis-

trators were all selected and trained by HPD and appointed by the

court upon HPD’s application.

'2 Since the Kirshes had repeatedly complained that they were not being

sent the monthly reports, HPD knew or should have known that the

Kirshes were unaware of what had happened.

6

Where HPD is the 7A Petitioner, as in this case, the HPD Com-

missioner or his designee may be the 7A Administrator. (Section

778 subpar. 1.) Here, HPD designated each of the persons who have

acted as the 7A Administrator of the Kirshes’ property as the

Commissioner’s designee. Each of these persons have been com-

pensated for their services out of the property’s income. (Section

778, subpar. 2.)'°

In addition in all court proceedings relating to the property’s

being in 7A administration, with the exception of the present case,'*

City attorneys, either HPD staff attorneys or attorneys from the

Office of Corporation Counsel of New York, have represented the

7A Administrators in litigation with the Kirshes.

David Weiss, the 7A Administrator who disposed of the Kirshes’

property and leased out their home, testified that in the 7A training

course he attended, he received no instruction on the 7A statute, on

the owner’s rights or on the 7A Administrator’s obligations to pay

the property taxes or the surplus income to the owners.’°

In addition, HPD supervises and oversees the 7A Administrators."

HPD assigns an HPD official to be the 7A Manager of the property

and Counselor to the 7A Administrator. This HPD official is re-

sponsible to see that the repairs required by the 7A Petition and

Judgment are made and that the property is otherwise managed in

accordance with the requirements, terms and conditions of the 7A

Judgment. To this end HPD also has a specific 7A training course

'S Since the Kirshes objected to and opposed the imposition and continua-

tion of 7A administration, use of their property’s income to pay the 7A

Administrator’s fee was not voluntary on their part.

'* In this case, Corporation Counsel requested the District Court to dismiss

the claims against the 7A Administrators who had defaulted after initially

appearing in the action.

'S R-I at 525-27, 538-41.

'© HPD may seek the removal of any 7A Administrator that refuses to

follow its instructions and regulations.

7

for its employees who will fill this position. In this case Ms. Sheila

Samms testified that she attended a sixteen week training course."’

The HPD 7A Manager and 7A Administrator enter into a com-

pliance agreement for each property in 7A administration setting

forth the goals for managing the property in accordance with the

requirements of the 7A Judgment ({ | 1c) and the 7A statute. A new

compliance agreement is executed annually, or more frequently, if

necessary. The HPD Manager inspects the property, reviews the

monthly reports and re-visits the property periodically, or as nec-

essary, to verify certain work has been done, or that there is a va-

cancy, or when there has been a large expenditure, or if a problem

arises.

According to Ms. Samms, the terms, conditions and requirements

that were to be followed were those set forth in the 7A Judgment.

However, Ms. Samms testified that upon her assignment as 7A

Manager to the Kirshes’ property she was not given a copy of the

7A Judgment, did not try to obtain a copy or find out what the 7A

Judgment required" and first saw it when she was served with the

Summons and Complaint.'? The only court order that she had was

that appointing David Weiss as the 7A Administrator. Accordingly,

she didn’t know what emergency repairs were required by the 7A

Judgment and thus was in no position to determine what additional

work required court approval. As a result, she wasn’t in a position

to assure that the 7A Judgment was being followed and properly

implemented. She testified further that under the circumstances that

her only concern was to see that the rents were collected and the

rent money spent on the property.”

'7 R-I at 449-50, correction at 501.

'S R-I at 451.

'? Ms. Samms also testified that she was never told prior to April 1994 by

her supervisor or any other HPD official that the owners had an apartment

in the building and were allowed under the 7A Judgment to keep their

home or that the property taxes were to be paid. R-I at 45, 460-61, 474-75,

486-89.

*? R-I at 456-57, 498.

8

Ms. Samms also testified that one of the responsibilities of the

HPD 7A Manager was to look after the property owner’s interests

since the owner is usually barred from the property.”' However, she

was never instructed concerning what the owner’s rights were and

did not herself know what they were.” Furthermore when she read

the reports indicating that furniture, appliances, equipment, clothes,

etc were being removed, she never sought to ascertain whose prop-

erty was being removed and disposed of. All she did was visit the

building to make sure that the work was being done.” When she

finally learned in April 1994 that the ground floor rooms were the

Kirshes’ home, neither she nor her supervisor took any corrective

action, or notified the Kirshes or the court or sought Weiss removal.

In fact, Weiss testified that HPD never instructed him to terminate

the illegal leases or not to renew them.”

Weiss defended all his actions as being authorized by the original

7A Judgment.

3. Defendants’ Consistent Failures To Comply With the 7A

Judgment

The 7A Judgment” specifies the limited authority and obligations

of the 7A Administrator. First, the 7A Judgment imposed a mone-

tary limit on what could be spent without prior judicial authoriza-

*! R-I at 451-52, 471-73.

> R-I at 450-54.

Removal and disposition of the Kirshes property took place in June,

September and October 1993. The volume of material removed was

astonishing: 84 truck loads and four (4) 30 yard dumpsters, at a cost of

$8720.00 which was well in excess of the $3500.00 limit authorized by the

7A Judgment.

** The front room was leased to a commercial tenant for five years—

which was in violation of Section 778 subpar. | of the 7A statute. The rear

ground floor rooms were leased to a residential tenant for one year term

and renewed even after the Kirshes objected and instituted this action.

te

&

*> The 7A Judgment conforms with the 7A statutory requirements.

9

tion. Paragraph 7 of the 7A Judgment required prior court for “any

contract for repairs and services in an amount in excess of $3500.00

*** (R-I at 35.) This limitation was repeatedly ignored by the 7A

Administrators” and according to Ms. Samms, HPD routinely al-

lows and acquiesces in 7A Administrators’ submitting partial in-

voices so as to avoid having to apply for court authorization. (R-I

at 466-67; 469.) Here, this practice allowed, inter alia, Mr. Weiss to

pay for the removal and disposal of the Kirshes’ property from the

building at a cost of $8720.00, without prior court approval.”

Second, the 7A Judgment set the priority of expenditures ({ 9,

R-I at 36-37), requiring first that monies be spent to do the repairs

listed in HPD’s Petition and prohibited any other expenditures ex-

cept for fuel, ordinary repairs and maintenance, insurance, repay-

ment of loans taken to do the repairs listed in the Petition, and a

reasonable fee to the Administrator. Property taxes were then to be

paid, then any outstanding emergency repair expenses and liens

and then the surplus was to be paid over to the owners of the prop-

erty. If the 7A Administrator wished to do other repairs, including

ones of an emergency nature, prior court authorization had to be

obtained. ({ 10, R-I at 37.) Notwithstanding these provisions, none

of the 7A Administrators ever applied to the court to do any

additional repairs, repeatedly failed to pay the property taxes

except once when the court ordered HPD to have them paid,” then

*° For example, according to the July 1993 Monthly Report Mr. Weiss

paid Acme Construction $4428.25 for water pipe work. R-II at 1046.

27 The removal of the Kirshes’ property consisting of furniture, appliances,

equipment, motorcycles, clothes, etc.,was reported to have required 84

truck loads and four 30 yard dumpsters. R-II at 1047, 1224, 1226; R-I at

688. Mara Kirsh attested that their home contained antique furniture, an

antique and modern Leica camera collection, jewelry, poetry, art work and

paintings, family correspondence and memorabilia. R-II at 902-04. No

record of the items removed and disposed of was made and Ms. Samms

never inquired what and whose property was being removed and disposed

of though it was part of her official responsibilities to look after the

owners’ interests since the owners are usually barred from the property.

R-I at 451-52, 471-73.

8 R-II at 848.

10

failed to pay them again, and never paid any money over to the

Kirshes.”

The 7A Judgment in Paragraph 11 (R-I at 37-38) requires the 7A

Administrator to personally appear before the court “at intervals not

less than sixty (60) days on dates and times set by the Court” to

report to and review the management and operation of the premises,

the monthly financial reports and to provide the court with any

other report it or HPD requested. The 7A Administrator is also re-

quired to file with the court and HPD™ a monthly report of the

receipts and expenditures made, and any other information request-

ed, before the 20th of each month for the preceding month. All

vacancies had to be reported to the court and if the vacancy lasted

more than 30 days, then the Administrator had to submit an ap-

plication for the Emergency Assistance Rehousing Program for

renovation and renting of the vacant apartment. Except for the filing

of the monthly report with HPD, none of these requirements were

complied with, notwithstanding complaints made by the Kirshes to

HPD and the court.”

Finally, when any 7A Administrator resigned, a final report set-

ting forth a full accounting was also required to be filed with the

court and served on the parties as a condition to their withdrawal.

Though there have been four 7A Administrators to date, none of the

three who resigned and relieved of their 7A Administrative re-

> R-II at 908; R-I at 444.

* Since the Kirshes were parties to the 7A action, the monthly report was

also required to be served on them under New York State’s Civil Practice

Law Rules (“CPLR”) 2103(e).

“' By letter and by proceedings they initiated in state court, the Kirshes

repeatedly that the reporting requirements were not being

complied with and that property taxes were not being paid as required. R

(Exhibit Volume) at 141-43, 176-77, 190-95, 205-06, 249, 250; R-I at 443-

44; R-II at 848, 908-09. See also transcript of New York Supreme Court

Justice Omansky’s order requiring property taxes to be paid. R-II at 856-58

and Report of the Finance department of New York City that property was

placed in rem for failure to again pay the property taxes. R-II at 884-89.

11

sponsibilities filed any such final report or served Plaintiffs with

one.

Thus as implemented, the routine, ongoing and close court over-

sight and supervision required by the 7A statute and Judgment were

never had.*? Presumably the court relied on HPD to make sure the

law and its decree were being followed but HPD adopted a policies,

practices and procedures that encouraged and facilitated, if not

approved of, the routine disregard of all the terms, conditions and

restrictions applicable to the administration of the property under the

7A Judgment.

4. Plaintiffs’ Prior Applications For Relief From State Court

Prior to the institution of this action the Kirshes applied to the

local courts for relief four times, and repeatedly brought to the

court’s attention, and HPD’s, the fact that the terms, conditions, and

restrictions of the 7A Judgment were being routinely disregarded,

including that they were not receiving the monthly reports, that the

60 day court appearances were not being had, that the property was

not being properly maintained and managed and that the property

taxes were not being paid. They also requested that the 7A Admin-

istration of their property be terminated and that they be allowed to

return to their home.” In 1991 the Court ordered the property taxes

paid and the property be removed from in rem proceedings for

failure to pay the property taxes. This was done but subsequently,

2 Had discovery been allowed with respect to other properties in 7A

Administration, Plaintiffs believe that they would have been able to show

that these practices were not the exception but common place.

3 Plaintiffs’ applications to State Court were made on November 7, 1988,

November 7, 1989, June 6, 1990, and June 12, 1991. R-Ex. Vol. at 103-35,

130-67, 185-229, 230-75, respectively. While preparing a fifth, they were

arrested and subsequently convicted of sending threatening letters to people

and organizations. United States v. Kirsh, 54 F.3d 1062 (2d Cir), cer.

denied, 516 U.S. 927 (1995). The Second Circuit recently ordered a

Habeas Corpus hearing be held.

12

the taxes again were not paid and in rem proceedings again ini-

tiated.

5. The City’s Policies, Customs And Practices In Its A pplica-

tion Of The 7A Statute

The origina) Complaint (Appendix F) alleged that the City was

applying the remedies available under the 7A statute as a means of

taking property from the owners without just compensation and that

the Kirshes’ case was an example of this.** The City was doing this

by instituting 7A proceedings without disclosing its true intent never

to return the management of the property to the rightful owners.

Instead, as the evidence developed in this case showed, the City by

not returning management of the property to the owner when the

emergency repairs were made or at the end of an extended term

imposed as punishment, and by not requiring its designee 7A Ad-

ministrators to strictly follow the 7A Judgment, including requiring

the payment of property taxes, was proceeding in a way that would

cause the owner of the property to lose title to the property as a

result of a tax sale or foreclosure. Though the District Court denied

all discovery on this issue, and though the City publishes no reports

on the number of properties under 7A Administration, the duration

of 7A Administration and the ultimate disposition of those proper-

ties, the evidence showed that:

— HPD did not instruct either the prospective 7A Administrators

or HPD 7A Managers concerning the owners’ rights, the obligation

under the statute or 7A Judgment to pay the property taxes and

surplus to the owners. Where 7A administration is imposed for an

R-II 848-57. See also HPD’s Settlement Stipulation dated August 14,

1992, that the property would again be taken out of in rem proceedings

and not be listed for tax sale. Notwithstanding, the property was placed and

remained on the in rem list. R-II at 884-89.

*S The Proposed Amended Complaint set forth the City’s Policies, Prac-

tices and Customs, actions and omissions in detail that caused or contribut-

ed to the constitutional violations in detail. R-II at 947-57.

13

extended term as punishment, these provisions are important pro-

visions protecting the owners’ interests.

~ HPD disregarded, acquiesced in and acceded to the 7A Admin-

istrators routine disregard of the requirements, terms and conditions

of the 7A Judgment, to the detriment and violation of the owners’

rights and interests under the court degree and the laws of the State

of New York.

— HPD did not require its designee 7A Administrators to file the

monthly reports With the court or to serve the owners with a copy

of the monthly report, or otherwise to appear and report to the court

as the 7A Judgment required, thereby assuring that there would be

no regular public accounting or exercise of judicial oversight that

both the statute and the Judgment required.

With respect to the Kirshes, that HPD had no intention of having

management of the property returned to them, or any concern for

their rights is evidenced by not only the above practices which

occurred with respect to their property, but HPD’s failure to provide

Ms. Samms with a copy of the 7A Judgment so she could do her

job and her own failure to acquire a copy of the 7A Judgment, and

by HPD’s failure to take any corrective action once it learned what

Weiss had done with respect to the Kirshes’ home and personal

property.

B. Proceedings in District Court

1. The Original Complaint

The Complaint sought to terminate the 7A Administration of the

Kirshes’ property and other equitable and legal relief, including

damages, for violations of their federal and state constitutional

rights and their rights under state law. In the first Claim, the

Kirshes alleged that the Respondents had:

“intentionally or with reckless and callous disregard of [their]

rights entered, or caused, or authorized others to enter, remove

and dispose of Plaintiffs’ personal property and lease and rent

14

Plaintiffs’ [home] *** to other persons or entities, without prior

notice to Plaintiffs and a hearing before a court with jurisdic-

tion, or acceded to or acquiesced in these unlawful and un-

constitutional acts. Defendants have thereby taken, removed,

destroyed, disposed of and otherwise deprived Plaintiffs of their

home and property and violated their constitutionally protected

liberty and privacy rights and interests without Due Process of

Law dialed *

The Second Claim alleged with respect to both:their personal and

real property Respondents’ actions were in violation of the Just

Compensation Clause.

The Third Claim alleged that.the numerous entries into their

home, searches and seizures, removal of their personal property and

rental of their home to others, constituted violations of their con-

Stitutionally protected rights under the Fourth and Ninth Amend-

ments, including their privacy rights,

“to be secure in their persons, houses, papers and effects

against unreasonable seizures, not to have their property seized

except upon issuance of a warrant [issued] by a neutral mag-

istrate upon a showing of probable cause, and not to have the

sanctity of their home and their fundamental privacy interests

violated by unwarranted governmental intrusions.”

The Fourth Claim alleged that Respondents’ not returning control

of their property to them and lifting of the injunction barring them

from their home, in themselves, and cumulatively with the other

deprivations, were in violation of the Eight Amendment’s prohibi-

tions against cruel and unusual punishment and excessive fines.

In the Fifth Claim the Kirshes challenged the constitutionality of

the 7A statute on its face under the Equal Protection Clause since

it only applied to a few counties in the State of New York and, in

the Sixth Claim, as applied by the City of New York, under the Due

Process and Just Compensation Clauses because the City was hav-

ing buildings placed under 7A Administration with the secret intent

that control of the property would never be returned to the owner

a;

15

and that the City would subsequently acquire title to the property as

a result of the property taxes not being paid.”

Finally, the Seventh and Eighth Claims alleged that the Respon-

dents had breached their fiduciary duties and had mismanaged the

property in violation of the 7A Judgment and applicable profession-

al standards of care.

2. The District Court’s First Partial Dismissal Decision’’

(a) The First And Third Claims

In its first decision the District Court granted in part the City’s

motion for dismissal. It dismissed the First and Third Claims as

against the City because it found that the Complaint did not

adequately allege a basis for municipal liability.** The District Court

also dismissed these Claims as against the HPD Commissioner” but

not as against Ms. Samms.

“ The District Court did not allow Plaintiffs to have any discovery in

connection with these claims and the information about properties that the

City had placed in 7A Administration is not otherwise available under a

Freedom of Information Act request or in any City published report.

7 1995 WL 383236, Appendix B.

* The proposed Amended Complaint (Appendix G) sought to cure any of

the technical pleading deficiencies but the District Court found that plead-

ing deficient too notwithstanding its detailed, specific allegations. It should

also be noted that the District Court denied Plaintiff all discovery except

with respect to Samm’s knowledge and even with respect to that issue

discovery was limited to her log entries. Her reports to her supervisor, his

instructions to her, correspondence, the reports and notes of the inspector

who accompanied her to the building, the compliance agreements and the

deposition of any one other than Samms and Weiss were not allowed.

* Plaintiff had sought injunctive and equitable relief against the Commis-

sioner.

16

(b) The Just Compensation (Second) Claim

The District Court dismissed the Second Claim that there had

been a taking without Just Compensation of their personal property,

home and the building. With respect to the building and its income,

the District Court held that there had only been a temporary regu-

latory taking that did not go too far nor deny them the expected

economic benefits of their investment. With respect to the leasing

out of their home, the District Court held that it was not a perma-

nent taking because it could be recovered upon expiration or ter-

mination of the tenancies. Finally, with respect to their personal

property,” the District Court held that the claim was not ripe

because the Kirshes had not alleged that they applied for available

statutory remedies notwithstanding the fact that the 7A statute

exempted the City from liability for the Administrator’s actions and

that the 7A Administrator’s liability was limited to his official

capacity.

(c) The Fourth Claim

The District Court dismissed the Fourth Claim on the grounds

that the term of 7A Administration was a sanction to secure com-

pliance, the Kirshes could apply for termination of 7A adminis-

tration and could correct the conditions for which 7A administration

was imposed.

(d) The Fifth And Sixth Claims

The District Court held that the Kirshes lacked standing to

challenge the constitutionality of the statute on its face or as applied

“ Except for some motorcycles and motorcycle parts, all of the Kirshes’

personal property had been disposed of. During the course of the litigation

the City disclosed that the motorcycles and motorcycle parts were placed

in storage and Plaintiffs learned that the storage fees were never paid. R-II

at 934.

a

17

under the Due Process and Just Compensation Clauses“ because the

Complaint failed to allege that there had been a final decision or

that adequate state remedies were unavailable.” In its second de-

cision the District Court also dismissed the Kirshes’ Equal Protec-

tion Claim.”

3. The District Court’s Dismissal Of The Claims A gainst Weiss

And Samms“

The District Court*’ subsequently granted Weiss’ motion for sum-

mary judgment and dismissed all the claims against him. The

District Court held that as a 7A Administrator, Weiss was not a

state actor under 42 U.S.C. § 1983 and that his actions did not

constitute state action under Section 1983.

With respect to Samms, the District Court also granted her motion

for summary judgment finding that there was no factual dispute that

she had authorized Weiss’ actions or found out about them prior to

April 1994. In so concluding, the District Court not only disre-

garded the evidence that Ms. Samms did know what Weiss was

doing, the credibility issues respecting her testimony about what she

knew and when,” her failure to take any remedial action or to

‘' All discovery requests made with respect to this claim were suppressed

by the District Court. The information sought respecting the City’s im-

plementation of the 7A statute is not publicly available or available on a

Freedom of Information Act request.

“2 The proposed Amended Complaint included such allegations, with de-

tailed supporting facts. Gs 16-25, App. G.)

3 No discovery was allowed on this issue either.

“1997 WL 375684, Appendix D.

4S The District Court also denied Plaintiffs’ motion to amend their Com-

plaint and for additional discovery.

“ The scope of discovery that the District Court allowed was unduly and

improperly limited. Plaintiffs were denied discovery, for example, of her

reports to her superior, her superior’s notes and records respecting his

(continued...)

18

notify the Kirshes or the Court. Finally, the District Court did not

address the alternative bases for Section 1983 liability that the

Plaintiffs had advanced.”

C. The Decision Of The Second Circuit

On appeal to the United States Court of Appeals for the Second

Circuit, the Court entered a summary order affirming the District

Court on the basis of its three decisions.

* (...continued)

instructions and communications with her respecting the Kirshes and their

property, the notes and reports of the building inspector who accompanied

her on her visits to the property, any correspondences and notes of com-

munications with Weiss, and Weiss’ to and with her. Plaintiffs were also

denied access to the 7A file on their building to ascertain if in fact Ms.

Samms had the 7A Judgment in that file and were not allowed to depose

any other HPD official so it could be ascertained what Ms. Samms knew

and when respecting the Kirshes and their property.

*’ The alternative predicates were:

— the existence of municipal policies, customs and practices that caused

or led to the violations, gave rise to the deliberate indifference to the

Kirshes’ constitutional rights and contributed to the violations, including

the decision that the Kirshes would never get their property back,

— the inadequacy and failings in the training of 7A Administrators and

their HPD 7A Managers,

— the failure of 7A Administrators, with the knowledge, acquiescence

and tacit approval of HPD, to adhere to terms and conditions set forth in

7A Judgments, and

— the failure of City officials to take corrective action but rather

acceding, acquiescing and approving violations of the terms and conditions

of the 7A Judgments, and the property owners’ constitutional rights.

19

REASONS FOR GRANTING THE WRIT

L

THERE’S A CONFLICT AMONG THE CIRCUITS RESPECTING

1983 LIABILITY OF PERSONS APPOINTED BY COURTS AS TO

bp ee THEY ARE ACTING UNDER COLOR OF STATE

There is a conflict and inconsistency among the United States

Courts of Appeals for the Second, Third, Fourth, Seventh, Ninth,

and Tenth Circuits respecting the issue of whether a person ap-

pointed by a court to fulfill a certain function is acting “under color

of law” for the purposes of determining liability under 42 U.S.C.

§ 1983.

In addition to the present case, the Seventh Circuit held in Loyd

v. Loyd, 731 F.2d 393, 398-99 (1984) that a court appointed

administrator of an decedent’s estate is not acting under color of

law within the meaning of Section 1983. Similarly, the Tenth

Circuit in Meeker v. Kercher, 782 F.2d 153 (1986) with respect to

a court appointed guardian ad litem in a child abuse case, held that

the court appointed guardian was not acting under color of law. In

both of these latter cases, the courts construed that person in ques-

tion was performing traditionally private activity rather than a state

function irrespective of whether the appointment was pursuant to a

state statute, subject to judicial control and review, or coercive.

The Fourth Circuit in Thomas S. v. Morrow, 781 F.2d 367, 377-

78, cert. denied, 476 U.S. 1124 (1986), also involving a guardian ad

litem for a person adjudged incompetent appointed pursuant to a

statute, the Third in Hohensee v. Grier, 373 F. Supp. 1358, 1363-64

(M.D. Pa. 1974), aff’d, 524 F.2d 1403 (3rd Cir.), cert. denied, 426

U.S. 940 (1975), respecting a court appointed receiver of a cor-

poration with plenary authority and appointed pursuant to an ex-

“8 The District Court’s reliance on the IBT Teamsters cases was mis-

placed. There the Administrator was appointed pursuant to a private agree-

ment of the parties and was voluntarily paid by the parties. United States

v. Int’l Brotherhood Of Teamsters, Chauffeurs, Warehousemen & Helpers

of Am., AFL-CIO, 941 F.2d 1292, 1295-96 (2d Cir. 1991).

20

traordinary exercise of the state court’s equitable jurisdiction and

subject to its control, and the Ninth Circuit in Lebos v. Judges of

the Superior Court, Santa Clara Cty., 883 F.2d 810, 817-18 and

n.10 (1989), with respect to a court appointed receiver, appointed

pursuant to a state statute, to collect a judgment against an attorney,

held that the court appointed individuals were acting under color of

law for the purposes of establishing their liability under Section

1983.

The Second Circuit’s decision in this case can not be reconciled

with the decisions in the latter four cases. The factors the District

Court relied on to support its conclusion that there was no state

action were either not determinative under this Court’s prior de-

cisions or actually supported the opposite conclusion. For example,

though this Court held that whether the person is employed or not

by the state or other governmental unit is not determinative,” West

v. Atkins, 487 U.S. 42, 51 (1988), the District Court placed sub-

stantial reliance on that fact Weiss was not a City or State employ-

ee. (1995 WL 383236 at 3, Appendix B; 1997 WL 375684 at 5,

Appendix D.) The lower court also relied on the fact that the 7A

Administrator was not paid by the City or the State® (1997 WL

375684 at 6, Appendix D), even though the 7A Administrator was

paid from the rental income, which is money belonging to the

Kirshes, against their will, pursuant to a state statute and under

court order—an obvious exercise of state power. See Lugar v.

Edmondson Oil Co. Inc., 457 U.S. 922, 940-41 (1982), holding that

private party’s use of constitutionally deficient statutory remedy for

private purposes was sufficient to establish joint action with state

for satisfying “under color of law” requirement for 1983 action.

* The issue rather is whether Weiss “was acting under authority explicitly

or implicitly-delegated by the State when he carried out the challenged

actions.” Morse v. Republican Party of Va, 517 U.S. 186, 116 S.Ct. 1186,

1208, 134 L.Ed.2d 347 (1996).

© Of. Polk County v. Dodson, 454 U.S. 312, 320-21 (1981) holding that

the fact that a public defender is paid by the state is not enough to estab-

lish state action under Section 1983.

21

Similarly, the court’s reliance on the fact that “[t]he 7A Adminis-

trator acts according to the provisions of a compliance agreement

***” (1997 WL 37684 at 6, Appendix D) is also not helpful be-

cause the “compliance agreement” here was not between private

parties but between HPD and the 7A Administrator, which was

mandated by the 7A statute, and required by the 7A° Judgment,

indisputably a state imposed requirement.

Finally, the District Court in interpreting the 7A Administrator as

acting on behalf of the tenants to correct the hazardous conditions

for which 7A administration was imposed to correct, ibid at 5,

disregarded several important factors:

— First, the HPD Commissioner brought the Petition in his own

name and not on behalf of the tenants and selected the 7A Adminis-

trator as his designee for administering the property.”

— Second, the 7A Administrator is acting pursuant to a complex

statutory scheme and judicial order, subject to monitoring and

supervision by a public agency and the court according to state

established standards. Cf. Blum v. Y aretsky, 457 U.S. 991, 1003-05

(1982) holding that where the state does not impose the standards

that are to be applied in making a particular decision, but the

standards are independently set by the profession, an insufficient

nexus exists to establish a right of action under Section 1983.

— Third, the 7A Administrator is claiming personal immunity

pursuant to the 7A statute’s limiting his liability to his “official

*! Under the City’s espoused point of view that the 7A Administrator is

not subject to its supervision and control, the 7A Administrator would be

the person with plenary authority over the property, making all administra-

tive and policy decisions. If so there would be state action, cf. Jett v.

Dallas Indep. Sch. Dis., 491 U.S. 701, 737-38 (1989)-holding that muni-

cipal liability may exist where official with delegated authority is final

decision maker, policy maker, and Pembaur v. Cincinnati, 475 U.S. 469,

485 (1986) person acting as final decision maker for municipality sufficient

to establish predicate for municipal liability. Weiss, on the other hand,

claimed he was subject to the control and supervision of HPD and entitled

to personal immunity under the 7A statute, with which the District Court,

in dicta, agreed. 97 WL 375684, at 10-11, n. 3, Appendix E.

22

capacity,” which is clearly inconsistent with the proposition that the

Administrator is not a state agent.” Cf. Wyatt v. Cole, 504 U.S.

158, 168 (1992), holding that immunity for 1983 violations is not

available to private persons.~

— Fourth, the 7A Administrator was fulfilling the regulatory and

police powers vested in HPD with respect to correcting the haz-

ardous conditions cited in the 7A Petition and after they had been

remedied, managing the property for the extended term of 7A

Administration as statutorily authorized and judicially imposed

punishment, a “ ‘traditionally exclusive prerogative of the State.’ ”

Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982), quoting with

emphasis added Blum v. Yarestsky, supra, 457 U.S. at 1011.

— And, finally, the bar against the Kirshes going within 2 mile of

the building was imposed on Mara Kirsh by the court as punishment

for criminal contempt and extended by HPD to Joseph Kirsh

pursuant to its authority as a regulatory agency and as an exercise

of its governmental police power. (The tenants didn’t have either

the regulatory or police power to so punish the Kirshes.)

To resolve the conflict and clarify the law is this area, especially

with regard to the criteria to be applied to determine when a person

appointed by a court is fulfilling a private function and not acting

under color of law within the meaning of Section 1983 the writ of

certiorari should issue.

* The District Court also strongly suggested that the 7A Administrator

was entitled to the benefits of judicial immunity. 1997 WL 375684 at 10-

11, n.3.

3 States are not able to exempt persons from liability under Section 1983

which is a matter for Congress to decide. Tower v. Glover, 467 U.S. 914,

920-22 (1984).

23

I.

THE SECOND CIRCUIT’S DECISION CONFLICTS WITH DECI-

SIONS OF THIS COURT ON IMPORTANT QUESTIONS OF

FEDERAL LAW

A. THE DECISIONS BELOW THAT THERE WAS NO ADE-

QUATE PREDICATE FOR MUNICIPAL LIABILITY CON-

FLICT WITH AND FAIL TO FOLLOW THE DECISIONS OF

THIS COURT

The Kirshes advanced five predicates for municipal liability: First,

with respect to the loss of their personal property, the invasions into

their home and the leasing of their home, that Weiss’ wrongful acts

would never have occurred had the HPD required him to strictly

adhere to the requirements and procedures set forth in the 7A

Judgment and statute, and had properly trained him and HPD’s 7A

Managers with respect to the proper implementation of 7A Judg-

ments, with due regard for the property owner’s rights and the

obligations owed the property owner.™

Second, that the City’s long term and routine disregard of those

mandatory provisions, acquiescence in and ratification of practices

in violation of or in non-compliance with the 7A Judgment and

statute were contributory causes and constituted a policy, custom

and practice that was illegal, an unlawful implementation of the 7A

program, and in violation of the owners’ constitutional, property,

proprietary and other personal rights.

Third, that the City in exercising its rights and powers under the

7A statute had adopted and pursued a policy to exercise its rights

and powers under the 7A statute to take control of properties away

from the lawful owners with the intent never to return the property

to the owners and eventually acquiring title as a result of non-

payment of property taxes and that pursuant to this policy the City

allowed, encouraged and acquiesced in the 7A Administrators dis-

‘* Had the 7A Administrators been appearing every 60 days before the

court, as required, it is unlikely that any of the wrongful conduct would

have occurred. Similarly, if the Kirshes been served with the monthly

reports, it would have been unlikely that Weiss would have ever attempted

to remove their property from their home.

24

regarding the 7A Judgment, allowed the property taxes not to be

paid and the property placed into in rem, and announced that the

Kirshes would never get their property back.

Fourth, that the City and the 7A Administrators acted in concert

to implement the 7A program in such a way that the owners’ rights

were disregarded and to achieve the City’s unlawful and unconstitu-

tional objectives.

Fifth, that once the City had actual notice that the 7A Administra-

tors were not acting in compliance with the 7A Judgment or in

violation of the statute, that Weiss was removing the owners’ prop-

erty from the building and then leasing out their home, the City, as

both the responsible party litigant, and the responsible governmental

entity, was obligated to take corrective action and here, instead, it

had consciously disregarded and ratified the violations of the 7A

Judgment and statute, and the Kirshes constitutional and other per-

sonal and property rights.

In rejecting these theories the lower courts failed to follow and

properly apply the decisions of this Court respecting municipal

liability under Section 1983. This Court has recognized that under

Section 1983 municipal liability may be predicated upon a number

of bases or theories, including the existence of a formal or informal

policy, widespread custom or established practice that directly

caused or contributed to the constitutional violation, Monell v. New

York City Dept. of Social Services, 436 U.S. 658, 694-95 (1978),

Board of the Cty. Commissioners of Bryan Cty. v. Oklahoma, 520

U.S. 397, 117 S.Ct. 1382, 1390, 137 L. Ed. 2d 626 (1987), or in-

directly caused, contributed or led to the alleged constitutional vio-

lation, as, for example, the result of inadequate training or deliberate

indifference to a known need or one that should have been antici-

pated. City of Canton Ohio v. Harris, 489 U.S. 378, 387-90 (1989).

Deliberate indifference contains a “conscious disregard” element

that may be satisfied by either continued adherence to an approach

that is known or should be known to have failed to prevent the

wrongful conduct or by the acquiescence in a pattern of constitu-

tional violations. Jd. at 397, and 390-91 (O’Connor, J. concurring),

cited and quoted in Board of the Cty. Commissioners of Bryan Cty.

v. Oklahoma, supra, at 1390. Liability may also arise where upon

25

learning of a constitutional violation there is a duty to act to correct

the violation and corrective action is not taken. Gebser v. Lago

Vista Indep. Sch. Dis., _ U.S. __, 118 S. Ct. 1989, 1999-2000,

141 L.Ed.2d 277 (1998) applying 1983 jurisprudence to Title IX

and concluding that if responsible official had actual knowledge of

discrimination there would be a duty to take corrective action and

the failure to do so would be actionable. Here, in addition to re-

peated complaints that the 7A Judgment was not being adhered to,

for and extended period of time HPD officials knew of the egre-

gious constitutional violations regarding the Kirshes’ home and per-

sonal belongings and made conscious, deliberate decisions not to

take any corrective action. As this Court observed in County of

Sacramento v. Lewis, ___ U.S. __, 118 S. Ct. 1708, 1720, 140

L.Ed.2d 1043 (1998):

“«** When such extended opportunities to do better are teamed

with protracted failure even to care, indifference is truly shock-

ing. ***”

HPD has also disregarded for more than ten (10) years the viola-

tions of the 7A Judgment that the Kirshes repeatedly complained of.

The District Court dismissed the Kirshes’ allegations respecting

not only the City’s unconstitutional implementation of the 7A Judg-

ment in this case and others, but also the averments that it was

failing to comply with the terms, conditions and restrictions in the

7A Judgment and statute as part of its decision not to ever allow the

Kirshes to regain control of their property, but also of the broader

policy that it was using the 7A program to unconstitutionally take

properties from their rightful owners in violation of owners’ due

process rights and right to just compensation. In so doing not only

were the decisions of this Court respecting the applicable standards

not followed, but the also this Court’s decision that a heightened

pleading standard is not applicable to a 1983 complaint. Leatherman

v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 168-69 (1993).

5S The proposed Amended Complaint was drafted to over come the Dis-

trict Court’s objections to the sufficiency of the pleadings.

26

B. THE LOWER COURTS’ RULINGS WITH RESPECT TO

EXHAUSTION, FINALITY, RIPENESS, TAKING AND

STANDING ARE CONTRARY TO AND INCONSISTENT

WITH THE DECISIONS OF THIS COURT

The lower courts held that with respect to the Kirshes’ claims that

their personal property had been taken and their home leased out to

strangers in violation of their rights to substantive and procedural

Due Process and to Just Compensation that the Kirshes had to first

exhaust the state’s remedies. In so holding, the lower courts dis-

regarded decisions of this Court that exhaustion is not required

under Section 1983. Heck v. Humphrey, 512 U.S. 477, 481, 483

(1994); Monroe v. Pape, 365 U.S. 167, 183 (1961). The issues

rather are whether pre-deprivation or post-deprivation procedures

were available and their adequacy. For example, in Zinermon v.

Burch, 494 U.S. 113, 127-39 (1990) this Court held that post-

deprivation remedies satisfy Due Process requirements only where

pre-deprivation are impossible or impractical, and the possibility of

erroneous deprivation unforeseeable. Also disregarded was this

Court’s decision in United States v. James Daniel Good Real

Property, 510 U. S. 43, 48-62 (1993) that the seizure of a home

without pre-notice and a hearing absent the most exigent circum-

stances is a Due Process violation even where otherwise adequate

post-deprivation remedies are available. Here the post-deprivation

remedies are clearly inadequate.

°° Had the 7A Judgment been strictly complied with the 7A Administrator

would have had to obtain prior court approval to remove the Kirshes prop-

erty since it was not the original emergency work that had been authorized

and the cost was likely to and did exceed the $3500.00 limitation. Also

once the vacancy was created in October, the court had to be notified after

30 days that these rooms were vacant. While Samms denied any knowl-

edge of what Weiss was doing, she did admit that she inspected the prop-

erty after first reading in the monthly report that he was removing property

from the ground floor rooms. It is likely that the compliance agreement or

in a communication with HPD that she or some other City official, e.2.,

the building inspector who accompanied Samms, was told his intent to

clean out the ground floor rooms and lease them out.

27

The lower courts also held that City’s keeping of their property

in 7A Administration and the leasing out of their home were merely

temporary takings lacking the finality to be ripe and actionable. But

this Court has long recognized that temporary takings which deny

the property owner of all use of his property fall within the Clause

and require just compensation. See, e.g., First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, Ca., 492

U.S. 304, 318 (1987). Here the Kirshes have been denied all use

and personal benefit of their property, its income and there home

since 1988 and if, as alleged, the City’s true intent is never to return

their property to them, the taking then is permanent.’ Such a result

can not be said to be within the zone of their reasonable investment

expectations since the 7A statute clearly contemplates return of

control of the property to the owners immediately after the emer-

gency repairs are made and otherwise required the property while

under 7A Administration to be managed in strict compliance with

the 7A Judgment and statute, with due regard for the owners’ rights.

(The 7A statute also doesn’t provide for either the taking of prop-

erty, real or personal, nor depriving the owners of the use and en-

joyment of their home.)

Finally, the lower court’s holding that the Kirshes lack standing

to challenge the constitutionality of the 7A statute on its face or as

applied is incomprehensible in light of the many decisions of this

Court that injury in fact is the basic requirement for standing. See

generally, e.g., Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154,

1161-61, 137 L.Ed.2d 281 (1997). The Kirshes had been harmed,

are being injured on an on-going basis and are continuing to be

injured by the 7A Judgment and the actions complained of.

‘7 “Finality” for the purposes of determining if there has been a taking

usually refers to a final agency decision. See Sutum v. Tahoe Reg. Plan.

Agency, 520 U.S. 154, 117 S. Ct. 1159, 137 L.Ed.2d 980, 992-93 (1997).

Also required to be considered in connection with the issues of ripeness,

finality and exhaustion is the harm being suffered by the Kirshes. A bbott

Laboratories v. Gardner, 387 U.S. 136, 152-54 (1967). Here the Kirshes

have been deprived for more than ten years of all personal use and benefit

of their property’s income and use and enjoyment of their home and have

been impoverished and have suffered significant deprivations as a result.

28

Il.

THE DECISION THAT THE PUNISHMENT IS NOT CONTRARY

TO DUE PROCESS AND IN VIOLATION OF THE EIGHTH

AMENDMENT IS INCONSISTENT WITH DECISIONS OF THIS

COURT AND OTHER CIRCUITS AND RAISES ISSUES WHICH

THIS COURT SHOULD RESOLVE

The Kirshes claimed that the punishment imposed on them

violated Eight Amendment limitations that punishment® not be cruel

and unusual or excessive. They also challenged under the Due

Process Clause the constitutionality of the imposition of a term of

punishment under a statute that set forth no limit or range, but left

it up to the discretion of the court and the imposition of a term of

punishment that had no definite end.

With respect to the latter issue, the decision below is inconsistent

with Third and Ninth Circuits which have held that punishment

must come to an end at the completion of a set term. Sample v.

Decks, 885 F.2d 1099, 1108 (3rd Cir. 1989); Haygood v. Younger,

769 F.2d 1350, 1354-58 (9th Cir. 1985) (en banc), cert. denied, 478

U.S. 1020 (1986). Here though the initial term of extended ad-

ministration to punish the Kirshes was for “not shorter than five

years,” the term of punishment on its face had no set end or term.

Now, after ten (10) years, the extended term has still not ended and,

according to the City, the Kirshes must apply and justify its ter-

mination, a requirement not set forth in either the 7A statute or the

7A Judgment. In State v. Huelsman, 588 P.2d 394, 405 (Haw.

1988), the court declared a state statute unconstitutional where it

gave the sentencing court full discretion to set the length of pun-

ishment without statutory guidelines or limits. The 7A statute has

the same infirmity and the extended term of 7A Administration

imposed as a punishment, with the contempt punishment of being

** Given the purpose, severity and disproportionality of the punishment

imposed to the acts of tenant harassment, the sanction was clearly penal in

nature. See, e.g., Austin v. United States, 509 U.S. 602, 609-10 (1993);

United States v. Halper, 490 U.S. 435, 442-50 (1989); Ballew v. Georgia,

435 U.S. 223, 229 (1978); Baldwin v. New York, 399 U.S. 66, 68-69

(1970). :

29

barred from going % mile of the building, has no set end. The court

here had full and uncircumscribed discretion to impose a term as it

saw fit and the one imposed has no fixed and definite end.

Whether a remedial statute containing a provision for punishment

must comply with traditional Due Process requirements respecting

fair notice of the proscribed conduct and the type, duration and

maximums allowed as punishment for each type of proscribed con-

duct according to its gravity,” is an important issue this Court

which should address.” Here the Kirshes’ being deprived of their

property and its income,” being barred from their home for more

than ten years lacks any proportionality to the acts of tenant harass-

ment that they were charged with. See generally, United States v.

Bajakajian, ___ U.S. ___, 118 S. Ct. 2028, 2036-38, 141 L.Ed.2d

314 (1998); Austin v. United States, 509 U.S. 602, 609-10 (1993).

In addition there is no legislative determination as to the length and

exact nature of the appropriate punishment or the factors to be

applied. Cf. Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing

courts . .. should grant substantial deference to the broad authority

that legislatures necessarily possess in determining the types and

limits of punishment for crimes”). Here punishment was arbitrarily

imposed—i.e., without regard to any statutory standards or guide-

lines!

*® See generally, Bouie v. City of Columbia, 378 U.S. 347, 351-56 (1964);

see also Giaccio v. Pennsylvania, 382 U.S. 399 (1966); Baggett v. Bullitt,

377 U.S. 360 (1964); A.B. Small Co. v. American Sugar Refining Co., 267

U.S. 233, 239 (1925).

® The District Court in holding that the Eighth Amendment did not apply

erroneously assumed that the Kirshes could themselves correct the con-

ditions that led to the imposition of 7A Administration when they could

not: they were barred from the property and prohibited from interfering

with its management. In addition, the District Court ignored the fact that

those conditions had long before been corrected.

*' Denying the Kirshes any personal use and benefit of their property’s in-

come is equivalent to a confiscation, fine or forfeiture.

30

CONCLUSION

This case represents a governmental program of questionable

constitutional validity that has gone seriously awry and has resulted

in egregious violations of fundamental constitutional property and

personal rights. What happened to Kirshes is shocking and disturb-

ing. This Court should grant the Kirshs’ Petition for a Writ of

Certiorari to clarify the law and provide appropriate guidance to the

federal courts below and in other circuits.

Dated: September 14, 1998

Respectfully submitted,

RICHARD P. CARO, Esq.

3 East Quincy Street

Riverside, Illinois 60546

(708) 447-5434

Counsel of Record

for Petitioners