Petition for Writ of Certiorari — Barrett v. Borough of Carlisle

Supreme Court, y.

\ \ ) FILED

0012902 FEB 1 2 ong

ll

In The

Supreme Court of the United States

*

ROBERT H. BARRETT,

Petitioner,

BOROUGH OF CARLISLE,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Commonwealth Court Of Pennsylvania

+

PETITION FOR WRIT OF CERTIORARI

Volume I

+

Robert H. Barrett

Petitioner, pro se

136 East High Street

Carlisle, Pennsylvania 17013

(703) 524-5949 or (717) 243-0989

QUESTIONS PRESENTED

1. Whether property owners were deprived of rights to due

process of law by the Pennsylvania Historical and Museum

Commission in alleged historic certification proceedings, in

violation of 42 U.S.C. § 1983?

Proposed Answer: In the Affirmative

2. Whether property owners were deprived of rights to just

compensation by the Borough of Carlisle for regulating

property within the Carlisle Historic District, absent valid

historic certification, in violation of 42 U.S.C. § 1983?

Proposed Answer: In the Affirmative

3. | Whether Petitioner was deprived of Fourth Amendment

rights to be secure in his properties and papers against

unreasonable searches by the Court of Common Pleas of

Cumberland County, Pennsylvania, Bayley, J., who issued

discovery orders against Petitioner's properties and papers, in

violation of 42 U.S.C. § 1983?

Proposed Answer: In the Affirmative

4. Whether Petitioner was deprived of Fifth Amendment

rights to just compensation by the Court of Common Pleas of

Cumberland County, Pennsylvania, Bayley, J., who through a

default judgment against Petitioner appointed an agent to take

possession of and to sell Petitioner's properties, in violation

of 42 U.S.C. § 1983?

Proposed Answer: In the Affirmative

PARTIES TO PROCEEDING

In addition to the parties named in the caption, the

Pennsylvania Historical and Museum Commission (a state

agency) allegedly certified the Carlisle Historic District,

thereby, establishing the basis for subsequent harm by

Respondent, the Borough of Carlisle.

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TABLE O

Page

QUESTIONS PRESENTED ..........-0-ssseseseressessessenensnenenensnes i

PARTIES TO PROCEEDING............:cccsssscesereerensseneneenennens ii

TABLE OF CONTENTS. .......::ccsessesssesreessensnnsennenseennensees ili

TABLE OF AUTHORITIES ..........cccccssessssessesnencnnseenennees Vii

ORDERS AND OPINIONS BELOW ...........:c0scssscseseeeeees l

JURISDICTION. ...........:csscsssssssessesseessessssecessessessessensensenenes 3

CONSTITUTIONAL AND STATUTORY PROVISIONS 4

STATEMENT OF THE CASE. .........:ccscsssssseessecseesseneeneees 5

REASONS FOR GRANTING THE WRIT..........:::020000+ 9

I. Pennsylvania State Courts incorrectly interpreted

the decision of the United States Supreme Court in

Penn Central Transportation Company v. New

York City, 438 U.S. 104 (1978) to deny that

historic certification constitutes a Fifth

Amendment "taking" when property owners are

denied procedural and substantive due process of

law before the certifying authority in historic

certification proceedingS.............ssssesseereeeeeneneneees 10

II. Pennsylvania State Courts denied judicial review

of historic certification proceedings, including final

historic Certification. ..............sscceseeeeeeeseeeeeeeseeeeeeees 13

III. The Court of Common Pleas of Cumberland

County, Bayley, J., violated Petitioner's rights

under the Fourth Amendment in issuing a

discovery order allowing Respondent to search

Petitioner's properties and papers... ........--.--sseseeee+ 14

ill

TABLE OF CONTENTS (cont.)

Page

IV. The Court of Common Pleas of Cumberland

County, Bayley, J., violated Petitioner's rights

under the Fifth and Fourteenth Amendments in

appointing an agent to take possession of and to

sell Petitioner's improved properties... ..............0..00. 17

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~ APPENDIX (See Volume 2)

A. ORDER of the Supreme Court of Pennsylvania,

Middle District at No. 692 M.D. Allocator

Docket 2000, dated January 08, 2001, which

denied Petitioner's Petition for Allowance of

B. ORDER AND OPINION of the

Commonwealth Court of Pennsylvania at

No. 423 C.D. 2000, dated August 23, 2000,

which denied Petitioner's appeal..................:0000000 Bl

C. AMENDED FINAL DECREE of the Court

of Common Pleas of Cumberland County,

Pennsylvania at No. 98-4145 Equity Term,

dated January 24, 2000, which entered a

default judgment against Petitioner ........................ Cl

D. ORDER OF COURT of the Court of Common

Pleas at No. 98-4145 Equity Term, dated

October 13, 1999, which committed Petitioner

to county prison for civil contempt of court ........... D1

E. ORDER OF COURT of the Court of Common

Pleas at No. 98-4145 Equity Term, dated

July 07, 1999, which committed Petitioner

to county prison for civil contempt of court ........... El

iv

sca.

TABLE OF CONTENTS (cont.)

Page

PETITION TO VACATE AN ORDER OF

COURT in the Court of Common Pleas at

No. 98-4145 Equity Term, dated June 14,

1999, which petitioned the court to vacate

its June 03, 1999 discovery ordet................ccccceseeee Fl

OPINION IN SUPPORT OF ORDER DATED

JUNE 03, 1999 by the Court of Common Pleas

at No. 98-4145 Equity Term, dated June 23,

1999 (Incorporate herein is the ORDER OF

COURT dated June 03, 1999, which directed

Petitioner to respond to Respondent's discovery

ID vs iiinsssacvsietnineindusisissenasibenssanibabasibnagiamatebiies Gl

ORDER OF COURT by the Court of Common

Pleas at No. 98-4145 Equity Term, dated June

23, 1999, which denied Petitioner's subpoena

for historic district certification records................. Hl

MOTION TO ALLOW ISSUE OF A

SUBPOENA AGAINST THE PENNSYLVANIA

HISTORICAL AND MUSEUM COMMISSION

by Petitioner in the Court of Common Pleas at

No. 98-4145 Equity Term, dated April 19, 1999... Il

REQUEST FOR ENTRY UPON PROPERTIES

FOR INSPECTIONS AND OTHER

ACTIVITIES by Respondent in the Court of

Common Pleas at No. 98-4145 Equity Term,

dated March 26, 1999...............ccccccsssessescssssseseseccess Ji

INTERROGATORIES by Respondent in the

Court of Common Pleas at No. 98-4145

Equity Term, dated January 07, 1999 ............s0+ Kl

TABLE OF CONTENTS (cont.)

Page

L. REQUEST OF BOROUGH OF CARLISLE

FOR PRODUCTION OF DOCUMENTS

DIRECTED TO ROBERT H. BARRETT in

the Court of Common Pleas at No. 98-4145

Equity Term, dated January 07, 1999

(erroneously dated 1998) ............ccccccsssccesseeeeereeees LI

M. ANSWER TO COMPLAINT in the Court of

Common Pleas at No. 98-4145 Equity Term,

Gated December 22, 1GBG eiccanessernsenntnnictnititiienresees Ml

N. COMPLAINT in the Court of Common Pleas

at No. 98-4145 Equity Term, dated July 22,

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O. Constitutional and Statutory Provisions

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J AlLISVOILALUO at . Pi

7. Att 7), eee 7, 10-12, 19, 21

Statutes

United States Constitution, Fourth Amendment

ee eS EE Se Ne 5, 14-16, 19, 20, 21

United States Constitution, Fifth Amendment

EE ee eG EER 5, 6, 10-12, 13, 14, 17, 18, 21

United States Constitution, Fourteenth Amendment

Ne PRT SEAMS: SMP R IC ee 5, 6, 10, 12, 14, 17, 18, 21

Fe ire Bee FI ciiiceversnschnccasinagocnentnseniguignnnsnecnsertnananmnssnsane 3

42 U.S.C. §1983.............. wsotenesensecensecsaseqenensnannacescacencanenseeeee i, 5

ORDERS AND OPINIONS BELOW

ORDER of the Supreme Court of Pennsylvania, Middle

District at No. 692 M.D. Allocator Docket 2000, dated

January 08, 2001, which denied Petitioner's Petition for

Allowance of Appeal (See Appendix A).

OPINION AND ORDER of the Commonwealth Court

of Pennsylvania at No. 423 C.D. 2000, dated August

23, 2000, which denied Petitioner's appeal (See

Appendix B).

AMENDED FINAL DECREE of the Court of Common

Pleas of Cumberland County, Pennsylvania at No. 98-

4145 Equity Term, dated January 24, 2000, which

entered a default judgment against Petitioner and, inter

alia, appointed an agent to take possession of and to sell

eight (8) improved properties owned by Petitioner (See

Appendix C).

ORDER OF COURT of the Court of Common Pleas at

No. 98-4145 Equity Term, dated October 13, 1999,

which committed Petitioner to county prison for civil

contempt of court (See Appendix D).

ORDER OF COURT of the Court of Common Pleas at

No. 98-4145 Equity Term, dated July 07, 1999, which

committed Petitioner to county prison for civil

contempt of court (See Appendix E).

OPINION IN SUPPORT OF ORDER DATED JUNE

03, 1999 of the Court of Common Pleas at No. 98-4145

Equity Term, dated June 23, 1999, which directed

Petitioner to respond to Respondent's discovery

requests (See Appendix G).

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ORDER OF COURT of the Court of Common Pleas at

No. 98-4145 Equity Term, dated June 03, 1999, which

directed Petitioner to respond to Respondent's discovery

requests (/ncorporated in the court's opinion at

Appendix G).

ORDER OF COURT of the Court of Common Pleas at

No. 98-4145 Equity Term, dated April 23, 1999, which

denied Petitioner's subpoena for historic district

certification records (See Appendix H).

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Senne st a se ea

JURISDICTION

On July 22, 1998, Respondent filed a civil action

against Petitioner in the Court of Common Pleas of

Cumberland County, Pennsylvania at No. 98-4.45 Equity

Term. On January 24, 2000, the Court of Common Pleas

entered a default judgment against Petitioner.

On February 22, 2000, Petitioner filed an appeal in the

Commonwealth Court of Pennsylvania at No. 423 C.D. 2000,

which Court affirmed the Court of Common Pleas default

judgment against Petitioner on August 23, 2000.

On September 21, 2000, Petitioner filed a Petition for

Allowance of Appeal with the Supreme Court of

Pennsylvania, Middle District at No. 692 M.D. Allocator

Docket 2000, which Court denied the Petition on January 08,

2001.

The United States Supreme Court has jurisdiction in

this matter pursuant to 28 U.S.C. § 1257(a).

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tlh Sa

CONSTITUTIONAL AND STATUTORY

PROVISIONS

This case involves the following constitutional and

statutory provisions, which are set out in Appendix O:

1. The Fourth Amendment to the United States

Constitution.

2. The Fifth Amendment to the United States

Constitution.

3. The Fourteenth Amendment to the United States

Constitution.

4. 28U.S.C. § 1257(a)

5. 42US.C.§ 1983

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STATEMENT OF THE CASE

This is the second of five (5) related cases working

through State and Federal Courts to the Supreme Court of the

United States for writ of certiorari. The first case was

docketed at No. 00-977. The recurring issue in each of these

cases is the deprivation of rights to due process of law and

just compensation, secured by the Fifth and Fourteenth

Amendments to the United States Constitution, under color

of state law, in violation of 42 U.S.C. § 1983. These

violations began during alleged historic certification

proceedings by the State Historical and Museum Commission

(herein, "the State Commission") in establishing the Carlisle

Historic District (herein, "the Historic District"). The

violations continued through subsequent regulation of

property within the Historic District, by Respondent, the

Borough of Carlisle (herein, "the Borough"), including

regulation of the simple appearance of property, the issuance

of citations against property in the absence of public fire,

safety or health hazards, the condemnation of buildings

without valid cause, and the denial of building and

demolition permits for refusal to submit to historic board

reviews. | |

In the immediate State equity action brought by the

Borough, Petitioner, Robert H. Barrett (herein, "Barrett"),

was further denied Fourth Amendment rights by the Court of

Common Pleas of Cumberland County, Bayley, J. (herein,

"the Trial Court"), which ordered Barrett to allow warrantless

searches of his properties and papers under discovery

proceedings. (See Appendices F and G) The Trial Court

further violated Barrett's Fifth and Fourteenth Amendment

rights by entering a default judgment against him and

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a mam rT re emma nn eer er

appointing an agent to take possession of and to sell Barrett's

improved properties for refusing to allow warrantless

searches of his papers and for refusing to comply with local

historic district regulations. (See Appendix C)

In each of these cases, Barrett avers that the Borough

regulates property within the Historic District in the absence

of valid historic certification. Barrett avers that the Historic

District is not valid and cannot be regulated under State law

because it has not been certified as historically or

architecturally important by the State Commission. Although

the Borough alleges that the Historic District was certified by

the State Commission, there is no factual evidence that the

State Commission ever conducted certification proceedings

or certified the Historic District. If the State Commission, in

fact, conducted any kind of certification proceedings,

property owners were denied procedural and substantive due

process of law during those proceedings, were unaware that

an historic district was being established, were unaware that

their properties were to be included in the proposed Historic

District, and were unaware of the regulatory taking of their

property rights. Barrett avers that regulation of property

within the Historic District, absent valid historic certification

which included affording property owners substantive and

procedural due process of law, constitutes an unlawful

regulatory taking of property rights under the Fifth and

Fourteenth Amendments to the United States Constitution.

Barrett also avers that property owners are entitled to just

compensation for the taking of their property rights when the

historical or architectural importance of their property has not

been established.

In the first case which Barrett appealed to the Supreme

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Court of the United States at No. 00-977, the United States

District Court for the Middle District of Pennsylvania

dismissed Barrett's complaint based on alleged res judicata

of the issue in State Courts. Barrett avers that the State

Courts denied judicial review of the historic certification and

dismissed his appeal based on an incorrect interpretation of

the decision of the United States Supreme Court in Penn

Central Transportation Company v. New York City, 438 U.S.

104 (1978). The State Courts incorrectly interpreted Penn

Central to mean that historic designation is never a Fifth

Amendment taking, even when property owners were denied

procedural and substantive due process of law in historic

certification proceedings. Under the State's interpretation of

Penn Central, the State Commission may certify, and local

government may regulate, any property under the guise of

historic preservation without notification of the property

owner or other rights of due process.

In the immediate case, Barrett was twice committed to

county prison for civil contempt of court. (See Appendices D

and E) In the first instance, Barrett was committed

indefinitely for refusing to allow the Borough to conduct

warrantless searches of his improved properties under a

discovery order issued by the Trial Court. After forty-one

(41) days imprisonment under lock-down conditions, Barrett

agreed under duress to allow the searches in order to return to

his position with the Federal government.

In the second instance, Barrett was again committed

indefinitely to county prison, under lock-down conditions, by

the Trial Court for refusing to allow warrantless searches of

his papers and refusing to answer interrogatories concerning

his financial status. While in prison, Barrett was forced to

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V

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retire from his Federal position in order to maintain his

financial obligations through a retirement annuity. After

forty (40) days, Barrett was released under threat that the

Trial Court would enter a default judgment against him if he

failed to provide the requested financial information. On

January 14, 2000 (subsequently amended on January 24,

2000), the Trial Court issued a default judgment against

Barrett in which the Trial Court appointed an agent to take

possession of and to sell Barrett's eight (8) improved

properties for refusing to allow warrantless searches of his

papers and refusing to comply with Historic District

regulations.

The Commonwealth Court of Pennsylvania

subsequently affirmed the decree of the Trial Court and

denied Barrett's appeal. (See Appendix B)

Barrett filed a Petition for Allowance of Appeal with

the Pennsylvania Supreme Court which denied the petition on

January 08, 2001. (See Appendix A)

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REASONS FOR GRANTING THE WRIT

Introduction.

Within the Commonwealth of Pennsylvania, the

designation of "historic districts" has evolved into a scheme

by which local governments take control of tens of thousands

of properties under the pretense of preserving historically or

architecturally important properties. With few exceptions,

such as Philadelphia's Independence Hall, most Pennsylvania

historic districts contain little or nothing of historical or

architectural importance. Most historic districts are typically

composed of common, older buildings in areas where local

governments want to increase the tax base. There is no

lawful basis for most Pennsylvania historic districts. Local

governments regulate historic districts just as homeowners’

associations regulate housing developments. "Historic

boards" are appointed which dictate the simple appearance of

property. However, the significant difference between

homeowners' associations and government regulation of

historic districts is that home owners agreed as a condition of

sale to the contractual arrangement with the homeowners’

association. In most historic districts, property owners were

never given a choice in the matter. Barrett has owned

property in the area designated as the Historic District for

over thirty (30) years, and before the alleged certification of

the district. When the Historic District was established, all

exterior property rights were summarily taken without due

process of law by the State Commission and by the Borough.

In a thirteen (13) block area with over a thousand (1,000)

properties, property owners summarily lost all property rights

to the exterior of their property. Property owners within the

Historic District never knew that the Historic District was

9

established until years later. Where property is truly

historically important, such action might be lawful if just

compensation were paid for the taking of property rights.

However, in the Historic District, at issue in this case, there is

no factual evidence of any properties which are truly of

historical or architectural importance to justify the wholesale

regulatory taking of property rights which has occurred in

violation of the Fifth and Fourteenth Amendments to the

United States Constitution.

I. Pennsylvania State Courts incorrectly interpreted

the decision of the United States Supreme Court in

Penn Central Transportation Company v. New

York City, 438 U.S. 104 (1978) to deny that historic

certification constitutes a Fifth Amendment

- "taking" when property owners are denied

procedural and substantive due process of law

before the certifying authority in historic

certification proceedings.

In Penn Central the property owners were the Penn

Central Transportation Co., et al., and the property at issue

was Grand Central Terminal in New York City. In Penn

Central, the United States Supreme Court held:

"On this record, we conclude that the

application of New York City's Landmarks Law has

not effected a ‘taking’ of appellants’ property. The

restrictions imposed are substantially related to the

promotion of the general welfare, and not only permit

reasonable beneficial use of the landmark site, but

also afford appellants opportunities further to enhance

not only the Terminal site proper but also other

properties."

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Pennsylvania State Courts have ignored the case

specific conditions inherent in this decision and mistakenly

concluded that historic certification is never a Fifth

Amendment "taking. Pennsylvania State Courts

subsequently concluded that property owners do not have a

right (1) to procedural and substantive due process of law

before the certifying authority during historic certification

proceedings, and (2) to subsequent judicial review of historic }

certification.

The Pennsylvania State Courts ignored essential

conditions of Penn Central. In Penn Central:

(1) Property owners were afforded due process of

law because they were notified in advance that the New York

City Landmarks Preservation Commission proposed to

certify Grand Central Terminal as a landmark site and were

provided an opportunity to review and challenge the criteria

and evidence supporting such certification.

(2) Although the owners opposed the certification

before the New York City Landmarks Preservation

Commission, they did not seek judicial review of the final

certification. The owners thereby let stand the assumption

that sufficient evidence existed to support the landmark

certification.

In contrast, the Pennsylvania State Courts improperly

denied that historic certification and regulation of the Carlisle

Historic District constituted a Fifth Amendment "taking,"

even though property owners were denied procedural and

substantive due process of law during historic certification

proceedings before the State certifying authority.

In fact, a complete and accurate reading of Penn Central

1]

a

establishes that historic certification must be based on a

Constitutionally valid certification process which (1) affords

property owners due process of law before the certifying

authority and (2) establishes a valid historical or architectural

basis for certification. Only after the property owner has

been afforded due process before the certifying authority, and

after a valid basis has been established for historical or

architectural importance of the proposed property, can the

property finally be certified as historic. Penn Central

establishes that a Fifth Amendment "taking" does not occur

when property is first certified as historic based on a

constitutionally valid historic certification process which

afforded property owners due process of law. But Penn

Central does not eliminate the requirement that historic

certification proceedings must first be conducted which

afford property owners procedural and substantive due

process of law before the certifying authority.

Where property owners are denied substantive and

procedural due process of law in historic certification

proceedings, the conclusions of those proceedings are

Censtitutionally defective and cannot serve as a basis for

regulating property and the taking of property rights. Absent

the opportunity for property owners to review historic

certification criteria, to review evidence supporting the

historical or architectural importance of proposed property,

and to challenge historic certification, the historic

certification process violates the substantive and procedural

due process protections of the Fifth and Fourteenth

Amendments and constitutes an unconstitutional, regulatory _

"taking" of property rights.

Il. Pennsylvania State Courts denied judicial review of

historic certification proceedings, including final

historic certification.

Pennsylvania State Courts refused to review the historic

certification of the Carlisle Historic District, and the

subsequent "taking" of property rights through property

regulation. Ignoring the fact that property owners were

denied due process of law and never notified of the proposed

certification, or afforded an opportunity to review

certification criteria, or to review any substantial supporting

evidence, or to file objections to the proposed designation or

to seek judicial review of final historic certification,

Pennsylvania State Courts claimed that the time for

reviewing the historic certification was within thirty (30)

days of the certification. The Pennsylvania State Courts

completely ignored the fact that most property owners never

knew of the historic certification until years later.

It is a well-settled matter of law that a statute of

limitations cannot begin to run until the claim itself accrues.

A cause of action does not accrue until a wrongful act causes

injury to the party. The United States Supreme Court has

repeatedly held, as it did in 1980, that a Fifth Amendment

claim for just compensation is not “ripe,” and therefore

cannot be adjudicated, until a regulation has been specifically

applied to the property and has caused specific harm, Gains

v. City of Tiburon, 447 U.S. 255 (1980). In the present case,

the claims under the due process and “takings” protections of

the Fifth Amendment did not become “ripe” until the

Borough of Carlisle refused to issue Petitioner permits based

on Historic District regulations.

In denying judicial review of the historic certification,

13

ee

Pennsylvania State Courts improperly denied Petitioner's.

right of due process of law under the Fifth and Fourteenth

Amendments to the United States Constitution.

Ill. The Court of Common Pleas of Cumberland

County, Bayley, J., violated Petitioner's rights under

the Fourth Amendment in issuing a discovery order

allowing Respondent to search Petitioner's

properties and papers.

The Fourth Amendment to the United States

Constitution states:

“The right of the people to be secure in their

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched and the persons

or things to be seized.”

At issue is whether court-ordered discovery through

administrative "inspections," production of documents, and

disclosure of financial information through interrogatories

constitutes searches within the meaning of the Fourth

Amendment to the United States Constitution? Petitioner

argues that such "inspections" and demands for information

are, in fact, searches under the Fourth Amendment and are

subject to the warrant procedures of the Fourth Amendment.

On June 01, 1999, the Trial Court heard on-record

argument on the Borough’s motion to compel compliance

with their discovery requests, including the Borough’s

request for entry upon Barrett’s properties. At that hearing,

the Borough presented no statement of facts or evidence

14

against Barrett’s properties to establish probable cause for

general entry upon all eight (8) of Barrett’s improved

properties. Further, the Borough presented no argument for

entry upon any individual property owned by Barrett and

established no probable cause for such action. And, the

Borough presented no argument for entry upon Barrett’s

personal residence at 136 East High Street and established no

probable cause for such action. The Borough did not j

establish probable cause for searching Barrett's properties,

and the Trial Court did not issue Warrants.

On June 14, 1999, Barrett filed a Complaint in the

United States District Court for the Middle District of

Pennsylvania at Civil No. 1:CV-99-997. In the Federal

Complaint, Barrett averred that the inspections ordered by the

Trial Court constituted "searches" under the Fourth

Amendment to the United States Constitution, were ordered

without probable cause, and violated his right to be secure in

his property against unreasonable searches. Barrett requested

the U.S. District Court vacate the June 03, 1999 discovery

order of the Trial Court. On June 27, 1999, the U.S. District

Court dismissed the complaint for lack of jurisdiction.

On June 21, 1999, Barrett filed a Notice of Appeal to

the Pennsylvania Commonwealth Court of the June 03, 1999

discovery order of the Trial Court. Barrett averred that his

appeal was an Interlocutory Appeal as of Right made under

Pa.R.A.P. 313, Collateral Orders. On July 19, 1999, the

Commonwealth Court of Pennsylvania quashed Barrett's

appeal on grounds that it was interlocutory and not otherwise

appealable.

Barrett was subsequently incarcerated in the

Cumberland County Prison under lock-down conditions for

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forty-one (41) days for refusing to allow the searches. Only

after Barrett agreed, under duress, to the searches was he

released from prison.

Barrett was again incarcerated under lock-down

conditions for another forty (40) days for refusing to allow

warrantless searches of his papers and for refusing to answer

interrogatories about his financial status.

Courts are not exempt from the provisions of the Fourth

Amendment to the United States Constitution. Nor are

discovery actions in lawsuits exempt from the provisions of

the Fourth Amendment to the United States Constitution.

Constitutionally protected areas, including property, papers,

and effects, are subject to the protections guaranteed under

the Fourth Amendment to the United States Constitution.

Judicial discretion does not include the right to violate

Constitutional protections. Barrett avers that the discovery

“inspections” ordered by the Trial Court constituted

“searches” subject to Fourth Amendment protections, which

required a finding of probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized. The Trial

Court failed to issue warrants based on probable cause for the

searches of Barrett's properties, and Barrett avers that the

Trial Court, thereby, violated his right to be secure in his

property and papers against unreasonable searches. As a

consequence, Barrett's refusal to submit to violations of his

Constitutional rights by the Trial Court does not establish a

basis for civil contempt of court and his subsequent

imprisonment.

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IV. The Court of Common Pleas of Cumberland -

County, Bayley, J., violated Petitioner's rights under

the Fifth and Fourteenth Amendments in appointing

an agent to take possession of and to sell Petitioner's

improved properties. (See Appendix C)

The Trial Court entered a default judgment against

Barrett, which Amended Final Decree appointed an agent to

take possession of and to sell Barrett's eight (8) improved

properties in the absence of any factual evidence supporting

the Borough's Complaint.

For years, the Borough has perjured itself before this

Trial Court in an effort to regulate the simple appearance of

Barrett's properties and to prevent Barrett from demolishing

buildings within the Historic District in order to create

adequate parking for tenants. The Borough has falsely

claimed that Barrett's properties constitute public safety

hazards, that properties would collapse, that windows would

fall out, that firemen could fall from porches, that roofs

would collapse, and that electrical explosions would occur.

In fact, in over thirty (30) years of owning property in

Carlisle, no one has ever been injured as a result of the

condition of Barrett's properties and no tenant has ever filed a

complaint concerning Barrett's properties. Most of the

alleged violations against Barrett's properties were against

buildings which Barrett had applied to demolish and been

refused by the Borough. While refusing to issue Barrett

demolition permits, the Borough continued to cite Barrett for

property maintenance violations against the very buildings he

was trying to demolish.

With respect to the personal and financial information

which the Trial Court ordered Barrett to produce, there is no

17

requirement in law that Barrett have, maintain or make public

any of the information demanded by the Trial Court:

a. There is no requirement in law that Barrett earn a

specified annual income in order to own property.

b. There is no requirement in law that Barrett spend a

specified amount of money to maintain his properties.

c. There is no requirement in law that Barrett have

insurance for his property.

d. There is no requirement in law that Barrett have

written leases.

e. There is no requirement in law that Barrett keep

business records.

f. There is no requirement in law that Barrett keep

receipts.

g. And there is no requirement in law that Barrett

make any of the about information available to the public, the

Borough, or the Trial Court.

The Building Officials and Code Administrators

(BOCA) National Property Maintenance Code to which the

Trial Court referred in its Opinion and Final Decree dated

January 24, 2000 is intended to protect the public from fire,

safety, and health hazards. The BOCA Code cannot lawfully

be used to regulate the simple appearance of property.

The Borough, however, in collusion with the Trial

Court uses the BOCA Code to unlawfully regulate the simple

appearance of properties within the Historic District in the

absence of public fire, safety or health hazards. Regulation

of the simple appearance of property is a "taking" of property

rights in violation of the Fifth and Fourteenth Amendments to

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the United States Constitution.

The Trial Court exceeded its authority in appointing an

agent to take and to sell Barrett's properties. The Trial

Court's default judgment is based solely on Barrett's refusal

to give up his Constitutional rights under the Fourth

Amendment. The Trial Court failed to establish that the

searches ordered were reasonable and that they were essential

to the immediate action. The Borough admitted in its

Complaint that no laws had been broken. The Borough

further failed to establish that any harm had been done to the

Historic District or to individual property owners. In fact, the

thinning of properties within the Historic District is

absolutely necessary to the viability of the Historic District.

The significant loss of business in the downtown area is the

direct result of lack of adequate parking, excessive real estate

prices, and egregious Borough regulations.

The Trial Court in the immediate action and in related

cases before it has taken the following actions:

(1) Colluded with the Borough to regulate the simple

appearance of property within the Historic

District;

(2) Denied a subpoena against the State Commission

to produce its records of the alleged certification

of the Historic District (See Appendices H and J);

(3) Denied judicial review of the alleged State

certification of the Historic District;

(4) Denied that property owners have a right to due

process of law before the historic certifying

authority based on the Trial Court's incorrect

interpretation of Penn Central Transportation

19

Company v. New York City;

(S) Denied review of the Historic District certification

based on expiration of the statute of limitations in

violation of Gains v. City of Tiburon;

(6) Violated Barrett's Fourth Amendment rights by

ordering warrantless searches of his properties and

papers,

(7) And taken Barrett's properties through

appointment of an agent to take possession of and

to sell his properties.

In a telling verbal exchange over objections to

questioning between the Trial Judge and the Solicitor for the

Borough at a hearing in a related State case, the Trial Judge

stated as follows, "Don't forget that it was this Court that

saved the Carlisle Historic District."

¢

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CONCLUSION

This case raises constitutional issues involving the

Fourth, Fifth, and Fourteenth Amendments to the United

States Constitution and the decision of the United States

Supreme Court in Penn Central Transportation Company v.

New York City, 438 U.S. 104 (1978). These issues have

been decided by the State Courts in a way probably not in

accord with applicable decisions of the Supreme Court of the

United States.

For the reasons set out, Petitioner prays that this

petition for writ of certiorari be granted.

Respectfully submitted,

Fobect Hl Boualt

Robert H. Barrett

Appellant, pro se

136 East High Street

Carlisle, PA 17013

(703) 524-5949 or (717) 243-0989