Petition for Writ of Certiorari — Fitzgerald v. Thompson

ey, 0 Supra Court, Us,

—— 087930 tray opi

OFFICE OF THE CLERK

IN THE

Supreme Court of the Wnited States

—-—— cape

KENYON B. FITZGERALD JR., PETER SCOVILLE WELLS, SIDNEY SILLER,

DISABLED AMERICAN VETERANS DEPARTMENT OF NEW YORK,

Petitioners,

—against—

WADE F.B. THOMPSON, ELIHU ROSE, ARIE L. KOPELMAN, STEPHEN

LASH, EDWARD KLEIN, REBECCA ROBERTSON, KIRSTEN REOCH,

CHARLES GARGANO, WILLIAM SHERMAN, CAROL BERENS, JOHN DOE,

MARY ROE, SEVENTH REGIMENT ARMORY CONSERVANCY, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WHITNEY NORTH SEYMOUR, JR.

Counsel of Record

425 Lexington Avenue, Room 1721

New York, New York 10017

(212) 455-7640

Attorney for Petitioners

On the Brief:

GABRIEL NORTH SEYMOUR

QUESTIONS PRESENTED FOR REVIEW

1. Do Veterans of the Armed Forces have Article

III standing to challenge the unconstitutional taking

and transfer of historic military sites?

2. Do the Petitioning individual military Veterans

have a continuing right of access to the Seventh

Regiment Armory in New York City for military, edu-

cational and recreational purposes, unconstitu-

tionally deprived by state action? (Fifth and

Fourteenth Amendments)

3. Do these military Veterans have a right to offer

museum programs and exhibits in the National His-

toric Landmark armory’s public spaces to educate

visitors about the role of citizen-soldiers in Amer-

ica’s wars, and has that right been violated by the

State action converting those spaces into commer-

cial restaurants? (First, Fifth and Fourteenth

Amendments)

4. Do the Disabled American Veterans and other

veterans’ association Petitioners have a statutory

right of free access to the Armory’s “Veterans Room”

and other historic regimental rooms for meetings

and social events which has been unconstitutionally

deprived by state transfer to a favored private party

for commercial use? (NYS Military Law Section 183,

and First, Fifth and Fourteenth Amendments)

ii

LIST OF PARTIES

Plaintiff KENYON B. FITZGERALD, JR., is Chair

of the 107th Infantry Regiment (Seventh New York)

Historical Society, chartered by the Regents of the

State of New York in 1964 to operate a military his-

tory museum pertaining to the Seventh Regiment

New York National Guard. He served in the armed

forces of the United States from June 1960 to June,

1966. He brings this action individually and as rep-

resentative of the Historical Society and also as

class representative of all military personnel who

served in the Seventh Regiment, the 107th Infantry

Regiment, and successor organizations.

Plaintiff PETER SCOVILLE WELLS is Treasurer of

the 107th Infantry Regiment (Seventh New York)

Historical Society. He served in the Armed Forces of

the United States from 1958 to 1964, first in the 525

M. I. Group and then in the Seventh Regiment, 107th

Battle Group. Mr. Wells’ father and uncle also both

served in the Seventh Regiment of the New York

National Guard, based at the Armory. He brings this

action individually and as representative, along with

Mr. Fitzgerald, of the Historical Society, and as a

class representative of all military personnel who

have served in the Seventh Regiment, the 107th

Infantry Regiment, and successor organizations.

Plaintiff SIDNEY SILLER is Department Adjutant

for the Disabled American Veterans, Department of

New York, Inc.; and a disabled veteran of World War

II and the U.S. military force in Korea in 1945 and

1946.

Plaintiff DISABLED AMERICAN VETERANS

DEPARTMENT OF NEW YORK, INC. is one of the

veterans organizations expressly granted, under Sec-

ill

tion 183 of the Military Law of New York State, the

use of armories in New York State for regular arid

special meetings and organization social events of a

private nature without payment of any charge or

expense therefor. It brings this action on its own

behalf and, along with Sidney Siller, as class repre-

sentative for all members statewide of all other vet-

erans’ organizations granted similar rights under

such law, including posts or chapters of

The United Spanish War Veterans

The American Legion

The Veterans of Foreign Wars of the United

States

The Disabled American Veterans

The AMVETS

American Veterans of World War II

The Jewish War Veterans of the United States,

Inc.

The Catholic War Veterans, Inc.

The Italian American War Veterans of the United

States, Incorporated

The Polish Legion of American Veterans, Inc.

The Army and Navy Union of the United States

of America

Posts of the Masonic War Veterans of the state

of New York, Incorporated

Groups of squadrons of New York Wing

Groups of squadrons of New York Civil Air

Patrol

iv

Groups of incorporated associations of veterans

of units of the organized militia

Organizations of sons of veterans of any war of

the United States

Organizations of the Reserve Officers Associa-

tion of the United States

Organizations of historic military commands set

forth in section two hundred forty-a of the NYS

Military Law

Defendants WADE F. B. THOMPSON, ELIHU

ROSE, STEPHEN LASH, ARIE L. KOPELMAN,

EDWARD KLEIN, REBECCA ROBERTSON, and

KIRSTEN REOCH are sued herein in their individual

capacities and as directors, officers and employees

of defendant Seventh Regiment Armory Conser-

vancy, Inc.

Defendant CHARLES GARGANO was Chair of the

Empire State Development Corporation, and defen-

dants WILLIAM SHERMAN and CAROL BERENS

were Project Managers of ESDC at the times of the

wrongful actions described below. Defendants

GARGANO, SHERMAN and BERENS are sued herein

in their individual and representative capacities.

Defendant SEVENTH REGIMENT ARMORY CON-

SERVANCY, INC. (“the Conservancy”) is the pur-

ported Lessee of the Armory from the State of New

York acting through the Empire State Development

Corporation (“ESDC”). The Conservancy is a not-for-

profit corporation organized under the laws of the

State of New York (using a deceptive name that

falsely suggests some official connection with the

Seventh Regiment).

V

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Supreme Court Rules,

counsel for Petitioners certify that Disabled Amer-

ican Veterans, Department of New York, Inc. is a

501(c)4 non-profit New York State membership cor-

poration. Its corporate parent is Disabled Veterans,

chartered by Congress. It is affiliated with Disabled

American Veterans of New York Services, Inc., a

501(c)3 non-profit corporation.

Vi

TABLE OF CONTENTS

PAGE

Questions Presented For Review .........-..... i

Nee nt ubnesedebaseda ses li

Corporate Disclosure Statement............... V

Table of Cited Authorities............ ea a rae Xi

Citations of the Official and Unofficial

Reports of Opinions and Orders

Entered in the Case ..............0.-0-eeeeee l

Basis for Jurisdiction in the

oe View cesnsecbescun eo eee's I

Constitutional Provisions and Statutes

Involved in the Case........-......... ae 2

Da SES i raya nO ee a 2

Article VI (in pertinent part)............... 4

Be 2

ks ot ee angus beesa eke 3

Amendinent XIV, Section 1 ................. 3

New York State Military Law

ee Se Oh OF os ic ss ba ecdbnkaasees ces 3

Chapter 482, 2004 Laws of New York

Eee CEM A ODONGIN) os ccc ccscesvccuseses 4

vil

PAGE

STATEMENT OF THE CASE ......... eee ae 5

Proceedings Below .........ccccccsscccccsecs 7

Statement Of FactS ......ccccccccccccevcevess 8

Unconstitutional Transfer of Private

PE cua s bine eudsekavius cea weneees 11

JURISDICTIONAL STATEMENT................ 12

WHY CERTIORARI SHOULD BE

a eek beeeneewee ei 13

Pi sg NEARER eet Pe nD Seana M a glean re Man 16

POINT I

PETITIONER INDIVIDUAL MILITARY

VETERANS HAVE LIBERTY AND

PROPERTY RIGHTS OF ACCESS

TO THE ARMORY FOR MILITARY,

EDUCATIONAL AND RECREATIONAL

PURPOSES WHICH GIVE THEM

STANDING TO CHALLENGE THE

CONSTITUTIONALITY OF STATE

DENIAL OF ARMORY ACCESS AS

A VIOLATION OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION ........ 16

The State Takeover and Transfer.......... 18

Facts Establishing Plaintiffs’

ce cea yseeeaeea taake ene usenet 20

PAGE

Commercial Restaurant Takeover......... 21

Denial of 14th Amendment Rights ........

Veterans’ Right of Association

Subject to the ‘Closest Scrutiny’

Armory Property Rights ....................

The Nature of “Property Right”

Locke Vision of Property and

The Constitution

Aesthetic and Recreational Rights........

Article III Standing

POINT II

MILITARY VETERANS HAVE A FREE

SPEECH RIGHT TO OFFER MUSEUM

PROGRAMS AND EXHIBITS IN THE

ARMORY’S PUBLIC SPACES TO

EDUCATE VISITORS ABOUT THE

ROLE OF CITIZEN-SOLDIERS IN

AMERICA'S WARS, AND THAT RIGHT

WAS DENIED BY STATE ACTION

VIOLATING THE FIRST, FIFTH AND

FOURTEENTH AMENDMENTS............ 32

The Funding Issue

Equal Protection Standing

ix

PAGE

POINT III

VETERANS ASSOCIATION PETITIONERS

HAVE A STATUTORY RIGHT OF

FREE ACCESS TO THE ARMORY'’S

“VETERANS ROOM” AND OTHER

REGIMENTAL ROOMS FOR MEETINGS

AND SOCIAL EVENTS, AND THAT

RIGHT WAS DEPRIVED THROUGH

STATE ACTION IN VIOLATION OF

NEW YORK STATE MILITARY LAW

SECTION 183 AND THE FIRST, FIFTH

AND FOURTEENTH AMENDMENTS..... 37

Favored Parties and Preferential

Beek.) EE ol, 6 A 39

CONCLUSION 0 sscus eee eee hea os cses eae 4]

APPENDIX

Court of Appeals Opinion and Order ..... la

District Court’s Opinion and Order.......

Chapter 482, 2004 Laws of

NGW TOF Meee eae kccecccccccee 26a

Exhibit I to Complaint (Letter from

Seventh Regiment Armory

Conservancy Restaurant, LLC)....... 37a

Exhibit J to Complaint (Letter

from Joseph Baum &

Michael Whiteman Co., Inc.).......... 38a

Exhibit K to Complaint (Letter from

Restaurant Associates) ....

Exhibit G to Complaint (Armory

Floor Plans, Ist and 2nd Floor

Rooms Under 99-Year Lease

to Conservancy, Inc.) .

Exhibit H to Complaint (Excerpt

from Conservancy Lease) .....

40a

XI

TABLE OF AUTHORITIES

Cases PAGE

Bates v. Little Rock.

361 U.S. 516 (1960).............. i4, 24, 25, 40, 41

Buckley v. Valeo, 424 U.S. 1 (1976)......... 25

Cleburne v. Cleburne Living Center, Inc.,

ey BO eg ee 24

Clements v. Fashing, 457 U.S. 957 (1982).... 35

Department of Agriculture v. Moreno,

fk Bee ee TG: > eee 24

Dunn v. Blumstein, 405 U.S. 330 (1972).... 4]

Ex parte Virginia, 100 U.S. 339 (1879).... 29

FOE v. Laidiaw, 528 U.S. 167 (2000)......13, 30, 39

Frost & Frost Trucking Co. v.

Railroad Commission of

California, 271 U.S. 5BS......cccccccccccce: 41

Gomillion v. Lightfoot, 364 U.S. 339

PUN cose lsee cu cancndetwi deat baineeecs ues soo. 41, 42

Ilunt v. Washington State Apple

Advertising Commission,

Se Gills ee CBE PD ood bnccdoccccccccecs: ee 13

Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123 (1951)......... er 29

Kelo v. New London,

545 U.S. 469 (2ZOQ0B) ......cccccccccccs 20, 23, 24, 40

Kusper v. Pontikes, 414 U.S. 51 (1973) 25

XU

PAGE

Lujan v. Defenders of Wildlije,

604 U.S. 555 (1992)............. can aewe cere 15

Marbury v. Madison, 5 U.S. 137 (1803)... 31

Regents of the University of California

v. Bakke, 438 U.S. 265 (1978) .............. 39, 40

Tobin v. Laguardia, 276 NY 34 (1937)........ 26

Veterans of Seventh Regiment v.

Field Officers, 60 Hun 578,

BAe See Ee CUE ve coy GaucUeuescesssieuesexs 2]

Village of Willowbrook v. Olech,

528 U.S. 562 (2000) (per curiam).......... 23

Williamson v. Lee Optical Co..,

Oe Wc ic GO CEWOO) veccccscccevvececcccesss 36

Statutes

ee Se Ss de os y sca ee eehekas eee sade ee een es 12

OR Eo | PP rere per er er Trey Terry eer rye 12

ss PR cays wiaecd eoekakhicoccevaveneaesie. 12

28 U.S.C. Sections 1254(1) l

ge Po | Per erry oer rr Terry rrr rare 12

Rules

go ges GE a ere Soa alee 7

Supreme Court Rule 10(c).. eues

CITATIONS OF OFFICIAL AND

UNOFFICIAL REPORTS OF OPINIONS

AND ORDERS ENTERED IN THE CASE

The Decision and Judgment of the District Court

dismissing Petitioner’s Complaint in its entirety,

filed on January 5, 2009, is reported unofficially at

2009 WL 29599 (S.D.N.Y) and is reproduced in the

Appendix at page 7a.

The Order of the U.S. Court of Appeals for the

Second Circuit, affirming the District Court, filed on

November 16, 2009, is reported unofficially at 2009

WL 3806414(C.A.2(N.Y.)) and is reproduced in the

Appendix at page la.

BASIS FOR JURISDICTION

IN THE SUPREME COURT

The order of the Court of Appeals sought to be

reviewed was entered on November 16, 2009. This

Petition for Certiorari is being filed within 90 days

thereof.

The statutory provisions believed to confer on this

Court jurisdiction to review on a writ of certiorari

the order in question are 28 U.S.C. Sections 1254(1)

and 2101.

Certiorari is appropriate under Supreme Court

Rule 10(c) because a United States Court of Appeals

has decided an important question of federal law

that has not been, but should be, settled by this

Court, and in a way that conflicts with relevant deci-

sions of this Court.

2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

Article II]; Article VI; Amendment I; Amendment

V; and Amendment XIV, Section 1 (All in pertinent

part)

Article [II

Section 1. The judicial power of the United

States, shall be vested in one Supreme Court,

and in such inferior courts as the Congress may

from time to time ordain and establish. * * *

Section 2. The judicial power shall extend to all

cases, in law and equity, arising under this Con-

stitution, the laws of the United States, ***.

Article VI

* * * This Constitution, and the laws of the

United States which shall be made in pursuance

thereof; and all treaties made, or which shall be

made, under the authority of the United States,

Shall be the supreme law of the land; and the

judges in every state shall be bound thereby,

anything in the Constitution or laws of any State

to the contrary notwithstanding * * *

Amendment I

Congress shall make no law * * * abridging the

freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to

petition the government for a redress of

grievances.

Amendment V

No person shall * * * be deprived of life, lib-

erty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

Amendment XIV, Section 1

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the state wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

New York State Military Law § 183 (in pertinent

part)

Paragraphs (a) and (b) of New York State Mil-

itary Law § 183

§ 183. Use of armories. 1. Armories may be used

as follows:

(a.) By members and units of the organized mili-

tia and cadet corps of such units.

(b.) On application of one or more posts or

chapters of the United Spanish War Veterans,

the American Legion, the Veterans of Forcign

Wars of the United States, the Disabled Ameri-

can Veterans, the AMVETS, American Veterans

of World War II, the Jewish War Veterans of the

United States, Inc., The Catholic War Veterans,

4

Inc., the Italian American War Veterans of the

United States, Incorporated, the Polish Legion

of American Veterans, Inc., the Army and Navy

Union of the United States of America, posts of

the Masonic War Veterans of the state of New

York, Incorporated or groups of squadrons of

New York Wing, Civil Air Patrol, or of incorpo-

rated associations of veterans of units of the

organized militia, or one or more posts or chap-

ters of organizations of sons of veterans of any

war of the United States or of the Reserve Offi-

cers Association of the United States, or those

historic military commands set forth in section

two hundred forty-a of the [NYS Military Law]

. approved by the officer in charge and

control of the armory, and by his military supe-

riors as prescribed by regulations issued pur-

suant to this chapter and under such

restrictions as may be prescribed by the adju-

tant general, the officer in charge and control of

an armory shall provide a proper and conve-

nient room or rooms or other appropriate space

in such armory where such posts or chapters

may hold regular and special meetings and

organizational social events of a private nature

without the payment of any charge of expense

therefore, provided that such use does not inter-

fere with the members and units of the orga-

nized militia stationed in such armory.

Chapter 482, 2004 Laws of New York State

Chapter 482, 2004 Laws of New York State is repro-

duced in the Appendix at pages 26a to 36a.

5

STATEMENT OF THE CASE

The Seventh Regiment Armory in New York City is

unique. It was built in the nineteenth century with

private funds raised and contributed by volunteer

members of the Regiment and placed in the owner-

ship of the Regiment’s field officers (Majors and

Colonels) as Trustees. It is private property for pur-

poses of the Fifth and Fourteenth Amendments and

may not be taken by the state without due process

of law and just compensation.

This case challenges the action of the New York

Legislature in adopting a statute drafted by a private

law firm to benefit one of its clients, passed in the

closing hours of the 2004 session. The statute took

ownership and control of the Armory away from the

Regiment’s Trustees and transferred it to the Empire

State Development Corporation, which in turn

leased it for 99 years to the private client for whom

the legislation and bidding process was expressly

crafted—defendant Seventh Regiment Armory Con-

servancy, Inc.

The Seventh Regiment Armory is a monument to

America’s citizen-soldiers as state militias, National

Guard, and wartime draftees. The Seventh was the

first body of troops to come to the defense of Wash-

ington, D.C. (including the U.S. Supreme Court) at

the start of the Civil War.

Plaintiffs Kenyon Fitzgerald and Peter Wells are

representative of the citizen-soldiers who have

served on active military duty in defense of their

country and its interests. Mr. Wells served in the

Seventh Regiment, as did his father and uncle before

him.

6

The Disabled American Veterans is an organiza-

tion of citizen-soldiers from America’s recent wars

who have suffered permanent disabilities while serv-

ing their country.

All of these military veterans have joined together

as Plaintiffs in this action to preserve the Seventh

Regiment Armory as a historic landmark honoring

the military service and sacrifice of the nation’s cit-

izen-soldiers. They oppose the Conservancy's plan to

convert the landmark historic Regimental and Com-

pany rooms on the first and second floors of the

nineteenth century Administration Building into an

elite commercial restaurant, cocktail bar, and ban-

quet and corporate reception facility where, accord-

ing to one RFP restaurateur, well-heeled patrons

will be served “fabulous food.” (Complaint, Ex I.

Appendix page 37a)

These historic spaces are tied to the service of

volunteer citizen-soldiers who have fought for the

nation since its founding. Plaintiffs argue that the

spaces should be used as a military history museum

under the 1964 charter granted by the Regents of the

State of New York, and should tell the human story

of the men and women who fought—and often laid

down their lives—winning this country’s indepen-

dence and defending it against armed invaders’.

There is no dispute about the desirability of

restoring and preserving the Seventh Regiment

Armory as a National Historic Landmark. Petitioners

welcome long-overdue funding to repair and restore

portions of the building that have suffered from age

and insufficient funding in the past.

For one suggested Armory museum design, see website

for the “LafayetteFreedomCenter.org”.

However, Petitioners strenuously oppose the use

of the historic regimental and company rooms of the

restored Armory for commercial purposes and the

transfer of absolute control over such use to a pri-

vate organization antagonistic to the traditional mil-

itary purposes and meaningful interpretation of the

U.S. military history associated with this noble and

important structure.

The basic question in this case is whether the his-

toric Seventh Regiment Armory, built and paid for

by the National Guard in the 1870s, will continue to

fulfill its military purposes as an armory primarily as

a military history museum telling the public the

story of America's citizen-soldiers and as a meeting

place for military veterans, or whether it will be

converted by a private group of wealthy individuals

operating under the umbrella of a tax-exempt pri-

vate charity into a fashionable Performing Arts Cen-

ter and Four Seasons-style restaurant complex.

Proceedings Below

The Complaint was filed in the Southern District

of New York on July 31, 2007. Defendants filed a

motion to dismiss under FRCP 12, which the District

Court granted on January 5, 2009. (Appendix, pages

Ta-25a)

Plaintiffs took a timely appeal to the Court of

Appeals for the Second Circuit, which affirmed the

District Court’s dismissal of the Complaint by Sum-

mary Order on November 16, 2009. (Appendix, pages

la-6a)

This Petition for Certiorari followed.

8

STATEMENT OF FACTS

The essential facts on which this case is founded

are set forth in paragraphs 12 to 69 of the Com-

plaint. They may be briefly summarized as follows:

The Seventh Regiment Armory was built in the

1870s on land leased to the Regiment by the City of

New York to be used “exclusively” for “Armory and

Drill Rooms.” It was paid for out of private contri-

butions raised by members of the militia regiment.

In 2004, the New York State Legislature passed a

bill written by a New York City law firm for a private

client, the “Seventh Regiment Armory Conservancy,

Inc.” The law firm's legislation enabled the turnover

of the Armory to the “Conservancy” under a 99-year

lease, along with all Armory rental income.

The Development Corporation's lease requires the

Conservancy to operate the historic landmark regi-

mental and company rooms in the Administration

Building (facing Park Avenue) as commercial restau-

rant, cocktail lounge, and corporate reception

spaces instead of “Armory and Drill Rooms”.

(Appendix, pages 40a to 43a) The state lease limits

the area set aside for “military use” to two small

offices on the third floor, inaccessible to the general

public and too small for meetings and events of vet-

erans organizations like the DAV.

A detailed recital of the history of the Seventh

Regiment Armory and its takeover by the private

“Seventh Regiment Armory Conservancy, Inc.” is set

out in the complaint. The following highlights of

those allegations provide the direct factual grounds

for the principal issue on this petition: have the Peti

tioners been deprived of any legal or Constitutional

rights in continued use of the property for Armory

purposes which give them standing to bring this

action?

The predecessors of the Seventh Regiment were

units of all-volunteer state militia, one of which was

formed as early as 1806. The Regiment itself came

into being as an amalgam of these militia units in

1847. As volunteers, the members of the Regiment

paid for their own uniforms and equipment, and

eventually for the construction of the Regiment’s

Armory on land leased by the City to the Regiment’s

field-grade officers (Major and above). The Regi-

ment had a particularly notable record of service

during the Civil War and World War I’.

In 1992, the Armory and its principal interior

spaces were designated New York City landmarks by

the NYC Landmarks Preservation Commission. The

designation of the interior spaces was an unusual

action, based on the Commission’s finding that they

constituted “historically and architecturally signif-

icant spaces.”

The building is listed on the New York State and

National Registers of Historic Places. In 1993, the

Armory was designated a National Historic Land-

mark.

The Armory consists of two structures: (1) a mul-

tistoried building, or administration building (the

“Administration Building”), which contains admin-

istrative offices, meeting rooms and social areas,

and (2) a one-story drill room (the “Drill Hall”), used

for military training.

The Administration Building contains important

late nineteenth-century period rooms designed and

)

See statue honoring the Regiment's World War I service

in New York's Central Park at Fifth Avenuc and 67th Street.

10

decorated by leading artists and craftsmen. The Drill

Hall, a 200 by 300 foot structure, is said to be the

oldest extant “balloon shed” (barrel-vaulted roof

supported on exposed trusses or ribs) in America.

In recent times, the Armory’s principal military

function has been as a center and gathering point

for troops and equipment for civil emergencies. It

was used as such following the terrorist attacks on

September 11, 2001. The Armory has also served as

work and meeting space for various Seventh Regi-

ment-related support, social and recreational orga-

nizations (including the organizations in which

Petitioners Fitzgerald and Wells have had active

roles).

In recent years the large Armory Drill Hall has

also been a venue for a variety of income-generating

public events, including antique shows, art shows,

and antiquarian book fairs serving as fundraising

vehicles for community charitable organizations.

Until 2004, the Regiment was directed to send all

rental revenues from such activities to the State's

Adjutant General, making them unavailable for

repair and upkeep of the building. Now those funds

are turned over to the private Conservancy.

The successor units to the Seventh Regiment have

unsuccessfully requested the State to provide funds

to renovate and maintain the Armory as well as pay

for installation of a military history museum in the

Armory, chartered in 1964 by the New York State

Regents. The State has repeatedly failed and refused

to provide such funding. As a result, the Armory’s

interior and exterior have deteriorated and are in

need of repair and replacement. This “blight” is the

State’s own doing through deliberate withholding of

funds.

11

The Unconstitutional Transfer of

Private Property

The private property at the core of this case con-

sists of both the Regiment’s leasehold to the land on

which the Armory sits, and the Armory itself. Both

property interests are to be privately held in trust by

the Regiment's field officers as Trustees. These

property rights are in perpetuity, so long as the

property is used for the Regiment’s lawful purposes

as an Armory and drill rooms. [See Complaint pars

18, 19, 21-26, and 36-39. }

Petitioners do not dispute the continued use and

rental of the Drill Hall for selected low-impact cul-

tural activities such as the traditional art, antiques

and antiquarian book shows benefiting local chari-

ties, as being lawful purposes in the public interest.

Petitioners, however, strenuously dispute the Con-

servancy’s non-armory use of the historic military

meeting spaces on the First and Second floors of the

Administration Building—al!l paid for out of private

funds raised or provided by members of the Seventh

Regiment—for corporate reception rooms and com-

mercial restaurants. This commercial use is not a

proper public purpose; is not a lawful “Armory and

Drill Room” use under the City Lease; and violates

the legal and Constitutional rights of Armory access

of Plaintiffs and all classes of veterans they repre-

sent in this proceeding.

The Petitioners’ legal contentions on its appeal

below were the following:

lL. The 2004 State legislation transferring the Sev

enth Regiment Armory from a trusteeship to a pre-

selected private non-profit organization was an

unconstitutional taking under the principle of

“impermissible favoritism” enunciated in Kelo v.

New London.

2. Limiting the Seventh Regiment to two offices on

the top floor of the Armory violated the Trustees’

fiduciary duty to use the Armory “exclusively for an

Armory and drill rooms.”

3. The Conservancy’s plan to convert the Armory’s

landmarked interior spaces into commercial restau-

rant, cocktail lounge, banquet and corporate recep-

tion facilities prevents proper armory use as a

military history museum and denies free space for

veterans’ organizations for meetings and events.

4. The named plaintiffs and class members had

legal and Constitutional rights in the Armory prior

to the unlawful taking in 2004, which they have vig-

orously pursued.

JURISDICTIONAL STATEMENT

This action arises under the Constitution and

Laws of the United States, including Amendments lI,

5 and 14; and 42 U.S.C. §1983; along with the Federal

Courts’ equitable and pendent jurisdiction. The Dis-

trict Court had jurisdiction over the federal question

claims under 28 U.S.C. §1331; over declaratory judg-

ments under 28 U.S.C. §2201; and over the statutory,

common law and equitable claims under the Court's

supplemental jurisdiction under 28 U.S.C. §1367. On

January 5, 2009, the District Court filed its Opinion

and Order dismissing the Complaint in its entirety.

On November 16, 2009, the Court of Appeals

affirmed the District Court’s dismissal in a summary

opinion and order. Both opinions are set forth in the

Appendix.

13

WHY CERTIORARI SHOULD BE GRANTED

The Second Circuit Court of Appeals has decided

an important question of federal law which should

be settled by this Court (Rule 10(c))—-whether Vet-

erans of the Armed Services have Article III standing

to challenge the unconstitutional taking and transfer

of historic military sites.

The Circuit Court’s decision conflicts with (1) this

Court’s recognition of injury-in-fact based on illegal

actions involving a specific location (FOE v. Laid-

law, 528 U.S. 167 (2000)); (2) this Court’s recogni-

tion of associational standing to protect the

interests of individual members of membership

organizations (Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333 (1997)); and

(3) this Court’s series of decisions upholding of First

Amendment rights of assembly, association and free

speech, a number of which are cited below.

These are novel Article III questions in the con-

text of veterans’ rights that vitally affect a signifi-

cant group of the U.S. population who have risked

their lives preserving the very liberties they seek to

enforce.

The dispute here revolves around an Empire State

Development Corporation 99-year lease of the Sev-

enth Regiment Armory in Manhattan to a favored

private group for use as a performing and visual arts

center combined with a high-end commercial restau-

rant and cocktail lounge complex, under the author-

ity of state legislation authorizing takeover of the

Armory from its Seventh Regiment Trustees.

The entire takeover of the privately-owned prop

erty and transfer to a private group was engineered

14

through a private law firm strategy to give control of

the prized property to a client of the firm.

The State Legisiature’s action did not merely vio-

late property rights of trust beneficiaries, but also

deprived the individual and association plaintiffs of

important First Amendment rights:

(1) their rights of association and assembly, and

(2) their right of free expression in educating the

public about the roles and specifics of the history of

their units and of all citizen-soldiers in defending

our liberties.

When a state or local government deprives citi-

zens of First Amendment rights, the government

must justify the abridgment of freedom by showing

a subordinating interest that is compelling.

[Glovernmental action does not automatically

become reasonably related to the achievement

of a legitimate and substantial governmental

purpose by mere assertion in the preamble of an

ordinance. When it is shown that state action

threatens significantly to impinge upon consti-

tutionally protected freedom, it becomes the

duty of this Court to determine whether the

action bears a reasonable relationship to the

achievement of the governmental purpose

asserted as its justification.

Bates v. Little Rock, 361 U.S. 516, 525 (1960)

That is why this Court should grant certiorari in

this case. The First Amendment must not be totally

scrapped to satisfy non-essential economic goals.

The goal of repairing the Armory building, and even

expanding public use of the Drill Hall, did not pre

sent a compelling case for taking over all the his

15

toric spaces in the Administration Building for use

as restaurants and corporate reception rooms,

blocking a chartered military history museum, and

ending the veterans’ meetings and events that had

taken place in the Armory for many years.

In the present case, the individual plaintiffs have

suffered injuries-in-fact by their eviction from the

Armory where they served for many years as vet-

eran-volunteers for Seventh Regiment programs. The

association plaintiffs have suffered injury-in-fact by

the closing of access to the Regimental Rooms in the

Armory to everyone except private restaurant Cus-

tomers. Both individual and association plaintiffs

have suffered First Amendment injury-in-fact in the

deprivation of their association and assembly rights

in these spaces, and in the blocking of historic pro-

grams and installation of museum exhibits in those

same spaces. These injuries-in-fact have all come

about because of the challenged state legislation,

and can be remedied by the Court’s declaration of

the unconstitutionality of the statute and restoring

the status quo ante. They therefore establish Article

III standing. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-561 (1992). As the Court noted in that

opinion:

The relevant showing for Article IIT standing is

not injury to the environment, but injury to the

plaintiff.

Here injury to Petitioners includes both the loss of

personal access to the Armory and elimination of

their fundamental First Amendment free speech and

associational and assembly rights.

16

ARGUMENT

POINT I

PETITIONER INDIVIDUAL MILITARY

VETERANS HAVE LIBERTY AND PROPERTY

RIGHTS OF ACCESS TO THE ARMORY

FOR MILITARY, EDUCATIONAL AND

RECREATIONAL PURPOSES WHICH GIVE

THEM STANDING TO CHALLENGE THE

CONSTITUTIONALITY OF STATE DENIAL

OF ARMORY ACCESS AS A VIOLATION OF

THE FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION

Prior to the disputed State takeover and transfer,

individual Petitioners Fitzgeraid and Wells each had

regular access to the Seventh Regiment Armory. In

addition to their roles as officers and directors of

the Regiment’s Historical Society, they performed

responsibilities at the Armory as often as several

times a week in various Regimental support groups.

Fitzgerald and Wells, with the full approval of the

Regiment's officers, regularly used and occupied

office and meeting space in the Armory to work on

Regiment-related projects. They, like other veterans

of the Regiment, were aiso members of its Veterans

Organization which held regular executive commit-

tee meetings in the Armory and an annual dinner in

the Veterans’ Room.

The District Court never heard oral argument on

the motion to dismiss, and never asked any ques-

tions about the details of plaintiffs’ interest in the

property, which was adequately and properly alleged

in summary fashion in the Complaint. Had the Court

asked for details, the District Judge would have

17

learned the extent of the regular occupation and use

of the Armory by Plaintiffs Fitzgerald and Wells as

operations officers of various Seventh Regiment

functions and activities (such as the Seventh Regi-

ment Fund and the Seventh Regiment Rifle Club).

In the proceedings in the Court of Appeals (which

had de novo jurisdiction to consider the facts and

law on the motion to dismiss) the individual Peti-

tioners made the following offer of proof:

If called as a witness, Kenyon Fitzgerald would

testify that at the time the state legislation was

adopted in August, 2004, he and Peter Wells, and

other members of the Veterans of the Seventh Reg-

iment (established in 1859) had regular, and unre-

stricted access and use of the Administration

Building and the Drill Shed. The Seventh Regiment

Fund, of which Fitzgerald is president, and its

employee-curators, had access to all areas of the

Armory [except the Company K room on the second

floor where ownership of the contents remained

with the Associates of the Engineer Corps of Com-

pany K]. The Seventh Regiment Fund (est. 1909)

maintained an office on the first floor, off the orig-

inal Library Room (known since 1947 as the Silver

Room) where Mr. Fitzgerald regularly did his work

for The Fund.

The Veterans of the Seventh Regiment maintained

a special room in the Administration Building from

the time of the building’s completion in 1881. The

veterans held monthly meetings of their Board of

Management from October through May, plus two

general membership meetings in June and December

in the Veterans Room (on the first floor of the

Armory). Over the years, numerous social functions

18

were held by the Veterans, both for themselves, and

as sponsors for Regimental socials.

If cailed as a witness, Plaintiff Peter Wells would

testify: Wells regularly worked as a volunteer in the

Armory on the affairs of the Seventh Regiment Rifle

Club and the Friends of the Seventh Regiment. He

performed his duties at the Armory year-round at

least once a week—sometimes three nights a week.

The Rifle Club had regular shooting nights once or

twice a week and dinner afterward. A night would

often start at 4 p.m. and end at 10 p.m. The Rifle

Club was confined to veterans and at various times

had as many as 100 members. The Club room was in

the basement and also the firing range was there.

The annual meeting of the Rifle Club was held in the

Veterans Room. In addition, both Petitioners

attended regular Board meetings and Executive

Committee meetings.

The State Takeover and Transfer

The Defendants wrested control of the Armory

under a scenario in which state legislation—adopted

without debate in the Legislature’s closing hours—

evaded any discussion of proposed benefits. The

turnover of the Armory was adopted “to benefit a

particular class of identifiable individuals”—the very

individuals whose lawyers wrote and engineered the

Statute, bestowing benefits upon them—employing

a two-step scheme through (1) enactment of Chapter

482, and (2) issuance of the 99-year lease under the

new law to a pre-selected party—the Conservancy.

The Conservancy’s claim that this was done pur-

Suant to an open-bidding procedure is a farce. As the

Complaint alleges, the process was tailor-made from

the start for one bidder only—the Conservancy.

19

This linking scheme, transferring the property to

ESDC, and then from ESDC through a long-term

lease to the favored private entity selected undera

rigged-bidding scheme, effected an unconstitutional!

taking. The Conservancy’s counsel boasted about

the law firm’s accomplishment on the firm’s website:

9/22/2004

Governor Pataki Signs Into Law a Bill

Drafted by Paul, Weiss

Lewis R. Clayton, Meredith J. Kane

On September 22, 2004, Governor Pataki signed

into law a bill drafted by Paul, Weiss lawyers

that facilitates the restoration and reuse by our

client the Seventh Regiment Armory Conser-

vancy, Inc. of the historic Seventh Regiment

Armory building located at Park Avenue and

66th Street. The new law, which amends provi-

sions of the New York Military Law and the New

York Urban Development Corporation Law

regarding the use, disposition and renovation of

the armory, enebles our client to enter into a

long-term lease of the Armory, to restore its

extraordinary 19th century architectural and

decorative splendor, and to open it to the public

as a performing and visual arts center. The ren-

ovation will be accomplished with a mix of pub-

lic and private funds. The bill, which was passed

at the very end of the New York State legislative

session, just after adoption of New York State's

2005 fiscal year budget, was drafted by Meredith

Kane and Elizabeth Stein, with input from Lew

Clayton.

(Complaint, Ex E)

20

Note that the description of the legislation is that

it “enables our client” to enter into a long-term lease

of the Armory. This in turn assured that the “client”

would collect millions of dollars in exhibition rents,

ticket revenues and catering income from the prop-

erty. From the outset, the Legislature’s action was

crafted to transfer private property from “A” to “B”

in direct violation of the Supreme Court majority’s

language in Kelo, “under the mere pretext of a pub-

lic purpose.”

It is precisely this impermissible government

manipulation to benefit known private entities that

is specifically prohibited by the Kelo interpretation

of the Takings Clause.

Facts Establishing Plaintiffs’ Standing

The Seventh Regiment Armory is in a class by

itself. Unlike every other armory in the nation, it

was built with private funds. For 130 years it was

owned and managed by Seventh Regiment Trustees.

(Complaint Ex C) Those Trustees not only had

responsibility for the care and operation of the

Armory, but they had an additional obligation under

the City lease of the public land to insure that the

Armory was “used exclusively for an armory and

drill rooms by said regiment.”

Early in the performance of their fiduciary duties,

the Seventh Regiment Trustees were told by the

Courts of New York that any attempt to enter into an

agreement with anyone “granting exclusive use of a

large and valuable room” [in that case the “Veteran’s

Room”—now scheduled for a commercially-oper-

ated reception facility] “for purposes entirely sepa-

rate and distinct from an armory or drill rooms for

21

the regiment” would be “a breach of trust.” That is

what has now happened.

The armory in question, as already stated, isa

public building, devoted to a public use, and the

board of field officers to whom the same was

leased under the provisions of the act of 1874,

before referred to, hold the same really as

trustees for the public, for public purposes, and

upon the express condition that the site is to be

thereafter exclusively held and used for an

armory and drill rooms by said regiment.

Green’s Brice, Ultra Vires, p. 120. As such

trustees, the board of field officers were not

authorized to divert the use of the building in

any way from the public use to which it was

devoted by the various acts of the legislature

under which it was erected; * * *.

Veterans of Seventh Regiment v.

Field Officers, 60 Hun 578,

14 NYS 811, 816 (1891)

The Court ruled that any such agreement would be

“absolutely void, as not within the power of the

{trustee] defendants” and would constitute “a vio-

lation of their duty as trustees.” Jd. at 817.

Commercial Restaurant Takeover

The Conservancy lease provides for a high-priced

restaurant, bar and catered reception spaces in the

historic Regimental rooms on the First Floor of the

historic Armory, plus a series of private corporate

reception rooms in the landmarked Company rooms

on the Second Floor. (Appendix, pages 37a to 43a)

The historic spaces that are being restored with

public funds will be used to provide exclusive pri-

22

vate dining facilities for well-to-do customers, busi-

ness executives, and ticket-holders for concerts and

performances. The level of these services is clearly

demonstrated by the three caterers and restaura-

teurs selected by the Conservancy to submit pro-

posals for operating these spaces year-round. They

include the entrepreneurs who operate the expen-

sive “Four Seasons” Restaurant in the Seagram

Building, and the former “Windows on the World” in

the World Trade Center (with its famed wine cellar).

(Appendix, pages 37a-39a)

In its 1992 resolution giving the Armory’s interior

rooms official landmark status, the NYC Landmarks

Preservation Commission made particular mention

of the beauty of the Veterans’ Room and the Library

on the First Floor of the Armory:

“. . . the Veterans’ Room and Library, designed

and decorated by Associated Artists (Louis C.

Tiffany & Co.), are considered among the most

beautiful and significant surviving interiors of

the American Aesthetic Movement. 7

The Conservancy's plans for the First Floor calls

for use of these “most beautiful and significant”

rooms as a commercially-operated catered reception

area with a combined capacity of 215 persons.

The Conservancy’s use of all of the officially des-

ignated historic Regimental and Company interior

spaces as attractions for an elite clientele of upper

income individuals, priced to exclude the general

public, violates the Constitution’s “public use”

clause and makes a mockery of the tributes to the

sacrifice and heroism of the ten Congressional

Medal of Honor awardees and other soldiers who

served in the Seventh Regiment and its successors,

23

along with citizen-soldiers and other military service

men and women currently serving in combat areas

abroad—plus those who served this country in the

past during the Civil War, World Wars I and II, Korea,

Vietnam, the Persian Gulf and other wars. (Com-

plaint pars. 61-67)

Denial of 14th Amendment Rights

Following the passage of the 2004 state legislation

and execution of the Development Corporation lease

in 2006, these veterans were denied all access to the

Armory.

Footnote 17 to the Kelo majority opinion notes

that:

These types of takings may also implicate other

constitutional guarantees. See Village of Wil-

lowbrook v. Olech, 528 U.S. 562 (2000) (per

curiam).

Kelo v. New London, 545 U.S. 469, 487 (2005)

In Village of Willowbrook, it was the scheme itself

that bestowed standing on the plaintiffs, by depriv-

ing them of Equal Protection.

The applicability of the Equal Protection Clause

was explained in Justice Kennedy’s Concurring

Opinion in Kelo:

A court applying rational-basis review under the

Public Use Clause should strike down a taking

that, by a clear showing, is intended to favora

particular private party, with only incidental or

pretextual public benefits, just as a court apply-

ing rational-basis review under the Equal Pro-

tection Clause must strike down a government

classification that is clearly intended to injure a

24

particular class of private parties, with only

incidental or pretextual public justifications.

See Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 446-447, 450 (1985); Department of

Agriculture v. Moreno, 413 U.S. 528, 533-536

(1973).

Kelo v. New London, 545 U.S. 469, 491 (2005)

Excluding veterans from spaces in the Armory in

favor of wealthy patrons does not pass the test for

equal protection of the law.

Veterans’ Right of Association

Military veterans share a special bond growing out

of their common experience in uniform which most

ordinary civilians cannot begin to understand. This

special spirit of camaraderie often takes the form of

joining veterans’ associations (like the American

Legion or Disabled American Veterans) and in din-

ners, picnics, Memorial Day observances or other

regular gatherings.

It is an important liberty interest embodied in the

constitutional right to free association and assem-

bly, recognized by this Court as deserving of pro-

tection in Bates v. Little Rock, 361 U.S. 516 (1960).

The state legislation here that closed the Armory

to veterans is one of the injuries-in-fact that sup-

ports the veterans’ standing to bring this case.

Subject to the ‘Closest Scrutiny’

State action seizing control of space previously

freely and wholly accessible to war veterans does

not simply implicate Fifth and Fourteenth Amend-

ment protections. The wresting of control of the

25

Armory space also effected the sheering off of reg-

ular personal contact, the ‘esprit de corps’ of shared

experiences, and the associations and shared values

of comrades-at-arms. This arbitrary deprivation of

place and associations echoes the fundamental vio-

lations first raised by this Court in the Civil Rights

Cases and later summarized in Buckley v. Valeo. “In

view of the fundamental nature of the right to asso-

ciate, governmental “action which may have the

effect of curtailing the freedom to associate is sub-

ject to the closest scrutiny.” NAACP v. Alabama,

supra at 460-461.” Buckley v. Valeo, 424 1.8.1, 25

(1976)

Where associational freedoms are impinged, this

Court has required heightened scrutiny:

As our past decisions have made clear, a sig-

nificant encroachment upon associational free-

dom cannot be justified upon a mere showing of

a legitimate state interest. Bates v. Little Rock,

supra, at 524; NAACP v. Alabama, supra, at 463.

Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973)

If previously free unrestricted association has any

constitutional protection—especially for America’s

war veterans—then the restriction of this most fun-

damental right is subject to the strictest scrutiny

and the state statutes affecting such rights must be

drawn with precision. Here, the change in control of

an historic structure is not all that is involved. The

sudden, arbitrary and severe change in use has

‘unnecessarily burden(ed] or restrict[ed] constitu-

tionally protected activity’ without appropriate tai-

loring to serve legitimate objectives.

26

Armory Property Rights

The Court of Appeals, like the District Court, took

a narrow and literal approach to defining whether

military veterans have any ownership rights in the

Armory which would give them standing to chal-

lenge the Armory taking under the Fifth Amend-

ment. That approach was too simplified for such a

complex institution with a long history.

The New York Court of Appeals squarely held that

the Armory was owned by the Regiment itself.

It was clearly the purpose of the Legislature to

recognize that the building in question is owned

by the regiment.

Tobin v. Laguardia, 276 NY 34, 43 (1937)

The legislation put that ownership in the hands of

Trustees. Who are the beneficiaries of that Trust?

(1) Are they only the current Regiment members in

uniform and on active duty?

(2) Are they retired members (like Mr. Wells) and

other Seventh Regiment veterans he represents?

(3) Are they the legal heirs of those who contributed

money to build and furnish the Armory in the 19th

century?

(4) Are they those who contribute “sweat equity”

into the Armory (like Mr. Fitzgerald and Mr. Wells)?

We argue that each and all of these are joint own-

ers of the Armory, and that each has Article III

standing to challenge the Conservancy’s taking of

the Trustee-owned Armory as unconstitutional.

When a soldier leaves active duty, he does not

erase all past associations, friendships, memories or

27

ties with the Regiment and fellow soldiers. It is a

wholly artificial argument to assert that a veteran of

the Seventh Regiment no longer has any liberty or

property interest in the Regiment’s headquarters and

meeting spaces. That continuing interest is sym-

bolized by the very name of “The Veterans’ Room”—

the principal gathering space dedicated to and used

for gathering by individuals who have served in the

Regiment. The formal contractual exclusion of

Plaintiffs and their military colleagues under Chap-

ter 482 from use of the Veterans Room deprives

them of a liberty interest and property right, and

Sharply illustrates the unconstitutional effects of

Chapter 482.

The Nature of “Property Right”

At the time of the 2004 state legislation, the

Armory was privately owned by the Regiment’s Field

Officers as Trustees for the Regiment. The individual

Petitioners assert they were beneficial users of the

Armory as officers of the Regiment’s support and

affiliated organizations.

Beneficial use. The right to use and enjoy prop-

erty according to one’s own liking or so as to

derive a profit or benefit from it, including all!

that makes it desirable or habitable, as light, air,

and access; as distinguished from a mere right

of occupancy or possession. Such right to enjoy-

ment of property where legal title is in one per-

son while right to such use or interest is in

another.

Black’s Law Dictionary,

Fifth Ed., West, 1979

23

Locke Vision of Property and The Constitution

The Framers’ concept of “property” as used in the

Constitution drew upon principles of natural law

espoused by John Locke, the English philosopher

whose writings on natural rights influenced the

Founders.

Locke's theory of property revoived around the

concept that property is a natural right, and that

property is derived from labor. A central concept

was that government could not dispose of the

estates of subjects arbitrarily.

Significantly here, Locke’s Second Treatise of

Government’, the one on which the Framers based

their concepts of natural rights and property rights,

considered that civil society was created for the pro-

tection of property. His source was the etymology of

the very word “property”"—from Latin, “proprius,”"—

that which is one’s own, and from French, “pro-

pre”"—in which he included the concepts “life,

liberty and estate.”

From Locke we derive the concepts of “life, lib-

erty and property” of the Fifth Amendment. But to

Locke, life and liberty were co-equals with what is

now considered “real property.” Each man owned

himself, at a minimum, and he owned his own labor

and the fruits of it. The relationship between the

state and its citizens consisted in a contract to pro-

vide order and protection by the state. Everything a

person had, everything that pertained to him, could

3°

“Two Treatises of Government: In the Former, The False

Principles and Foundation of Sir Robert Filmer, And His Fol-

lowers, are Detected and Overthrown. ‘The Latter 1s an Essay

concerning The True Original, Extent, and End of Civil-Gov

ernment”

29

be attributed to him was his property, including his

good name.

The only justifiable government deprivation of

property was by ‘the law of the land,’ or what has

come to be known as ‘due process.’

The precise nature of the interest that has been

adversely affected, the manner in which this

was done, the reasons for doing it, the available

alternatives to the procedure that was followed,

the protection implicit in the office of the

functionary whose conduct is challenged, the

balance of hurt complained of and good accom

plished—these are some of the considerations

that must enter into the judicial judgment.

Joint Anti-Fascist Refugee Comm.

v. McGrath, 341 U.S. 123, 163 (1951)

(Justice Frankfurter concurring)

Plaintiffs’ interest in the Armory are as bound up

with the Lockean concept of “property” and “liberty”

as it is with the definition of what is “due process”

under the circumstances of this case.

Whoever, by virtue of public position under a

State government, deprives another of property,

life, or liberty without due process of law, or

denies or takes away the equal protection of the

laws, violates the constitutional inhibition; and,

as he acts under the name and for the State, and

is clothed with the State’s power, his act is that

of the State. This must be so, or the constitu-

tional prohibition has no meaning.

Ex parte Virginia, 100 U.S. 339, at

346-347 (1879) quoted in Justice

Harlan’s dissent in the Civil Rights

Cases, 109 U.S. 3, 57-59 (1883)

30

These Petitioners satisfy both the common sense

and philosophical principles of Armory ownership

rights.

Aesthetic and Recreational Rights

Plaintiffs have suffered an injury-in-fact by being

denied free and open use and enjoyment of the

Armory’s aesthetic and recreational resources as a

National Historic Landmark, not unlike the aesthetic

and recreational rights of bird-watchers and animal

welfare activists in environmental cases. See

Friends of the Earth, Inc., et al v. Laidlaw Envi-

ronmental Services (TOC), Inc., 528 U.S. 167, 181-

183 (1999).

Article III Amendment Standing

Petitioners have a triple ground for Article III

standing:

(1) They each had a property interest in the armory

at the time of the challenged state takeover legisla-

tion; and

(2) They each had an aesthetic and recreational

right to enjoy the unique historic rooms and arti-

facts in this National Historic Landmark; and

(3) They also possessed First Amendment rights in

the Armory that give them standing to sue—rights of

association, assembly and free speech—all of which

have been damaged and injured by the state legis-

lation effectively denying them access to the

Armory.

These three principle grounds support Petitioners’

standing as Plaintiffs in the declaratory action and

related claims below.

31

Chief Justice John Marshall said,

The very essence of civil liberty certainly con-

sists in the right of every individual to claim the

protection of the laws whenever he receives an

injury. One of the first duties of government is

to afford that protection. * * * The Government

of the United States has been emphatically

termed a government of laws, and not of men. It

will certainly cease to deserve this high appel-

lation if the laws furnish no remedy for the vio-

lation of a vested legal right.

Marbury v. Madison, 5 U.S. 137, 163 (1803)

The remedy here lies in the Fifth Amendment tak-

ings, due process and public use clauses, and recog-

nition of these Petitioners’ injuries under the First,

Fifth and Fourteenth Amendments to the United

States Constitution.

The combination of the Armory’s original 19th

century Lease and Regiment Trustee ownership,

together with the individual petitioners’ long service

to the Seventh Regiment’s support groups gives

them constitutionally-protected liberty and property

interests in the Armory sufficient to establish their

standing in this case.

32

POINT II

MILITARY VETERANS HAVE A FREE

SPEECH RIGHT TO OFFER MUSEUM

PROGRAMS AND EXHIBITS IN THE

ARMORY’S PUBLIC SPACES TO

EDUCATE VISITORS ABOUT THE ROLE

OF CITIZEN-SOLDIERS IN AMERICA’S

WARS, AND THAT RIGHT WAS DENIED BY

STATE ACTION VIOLATING THE FIRST,

FIFTH AND FOURTEENTH AMENDMENTS

On October 23, 1964, the Board of Regents of the

State of New York granted an absolute charter to the

107th Infantry Regiment (Seventh, New York) His-

torical Society to establish and maintain a military

history museum.

Board of Regents Minutes October 23, 1964,

Absolute Charter, 107th Infantry Regiment

(Seventh New York) Historical Society, An

absolute charter is granted incorporating

George K. Brazill, L. Emory Boyden, Walter A.

Capitain, Joseph A. Cox, P. Randolph Harris,

George F. Johnston, Kenneth C. Siiller and

Leslie M. Stewart as trustees.

The purposes for which such corporation is to

be formed are:

a. To collect, receive, and preserve books,

papers, documents, diaries, letters, records,

citations, battle streamers, flags, honors, met-

als, decorations, and other memorabilia per-

taining to the Seventh Regiment, New York

National Guard;

b. To maintain a museum and library for the

care and custody thereof;

33

c. To assist in maintaining the historical con-

tinuity of this distinguished regiment, regardless

of changes in tactical organization in peace and

war;

d. To provide an opportunity for the individual

soldier to become familiar with the history and

traditions of the Seventh Regiment;

e. To niaintain records of members of the said

regiment; and

f. To direct or conduct research into the his-

tory of the Seventh Regiment, and to publish the

results of such research.

Recognition that there is a strong need for a

humanistic military history museum is supported by

scholars, historians and particularly those who have

served as citizen-soldiers in recent U.S. military

engagements and have received little or no public

understanding of the _ sacrifices such _ service

involves’. The Board of Regents charter provides the

seed for such a museum.

The Funding Issue

The obvious source of funding for planning,

installing and operating a first-class museum on

America’s citizen-soldiers in the Seventh Regiment

Armory is out of the rental income the Armory

receives from the annual antique art and antiquarian

book shows held in the Armory’s Drill Hall. In past

years, the State withheld these funds. Now the State

has agreed to turn them over, not to the Regiment,

but directly to the defendant Conservancy as the

‘ See, e.g., statement of Thomas Fleming, President of the

American History Association, at LafayetteFreedomCenter.org.

34

Empire State Development Corporation’s lessee.

(Complaint pars 41-50)

Taking advantage of the potential for generating

additional income from the interior landmarked Reg-

imental and Company rooms in the Administration

Building—formerly used by the Seventh Regiment

and its veterans—the Development Corporation’s

lease requires that these spaces be converted and

used as commercial rental space for restaurants and

cocktail reception areas—destroying all hopes of

preserving those spaces for the Armory’s public pur-

poses to present military history museum programs

or museum exhibits for visitors.

These rooms themselves are prime artifacts and

the most obvious site for interpreting the more than

hundred years of military use by the Regiment and

its officers.

Set out in the Appendix are exhibits from the

Complaint showing the floor plans for the first and

second floors of the Administration Building from

the Conservancy's lease, along with the lease sched-

ules providing for future use of these historic land-

marked rooms for commercial restaurant and

reception purposes. (See Appendix, pages 40a-43a)

Equal Protection Standing

The District Court also rejected any claim that

Plaintiffs were denied equal protection as a basis for

Standing:

* * * Plaintiffs have failed to show that they

were “able and ready” to apply to the ESDC’s

request for proposals to restore and renovate

the Armory. Although Plaintiffs assert that they

were prevented from doing so because the Con-

35

servancy, not they, received a monetary grant

for proposed restoration and renovation, this

does not state an equal protection violation.

(Appendix page 20a)

In Clements, this Court ruled that the Plaintiffs,

officeholders who resisted violating the very statute

whose constitutionality they were challenging lest

they lose the offices they held, were not asserting a

hypothetical controversy simply because they failed

to experience the ultimate sanction.

Baca’s dispute with appellants over the consti-

tutionality of § 19, therefore, cannot be said to

be abstract or hypothetical, since he has suffi-

ciently alleged that § 19 has prevented him from

becoming a candidate for the legislature.

Clements v. Fashing,

457 U.S. 957, 962-963 (1982)

Just as the appellees in Clements would not

announce their candidacy for higher office (and vio-

late the chailenged statute) yet retained a justiciable

controversy, here, the veteran-Petitioners did not

waive their opportunities for meeting and assem-

bling and for mounting their long-planned and long-

chartered museum by failing to apply to the ESDC as

lessees—particularly since they were already in

occupancy as officers of Seventh Regiment affiliated

and support organizations.

The facts alleged in the Complaint here made

clear the linking scheme entirely orchestrated by a

private law firm for its private client with interests

in direct conflict with the rights of the veterans who

regularly used and met in the Armory. To require

these veteran Petitioners to challenge that scheme

36

by participating in it comports neither with due pro-

cess nor equal protection.

There is no bright line classification rule when it

comes to repugnance to the Equal Protection clause.

“The prohibition of the Equal Protection Clause goes

no further than the invidious discrimination.”

Williamson v. Lee Optical Co., 348 U. S. 483, 489

(1955)

The veterans were under no obligation to respond

to the RFP in a scheme entirely against their long-

standing interests to use the Armory for meetings

and events and to establish a museum within the

walls of a structure they had long called ‘home’ and

long used in service to the military purposes for

which it was first constructed. In addition to that

conflict with the challenged ESDC scheme—ail mas-

terminded by the very private party that would

receive preferential, favored treatment “invidious”

to the veterans, and thus supporting the veterans’

equal protection claim—that conflict also supports

their First Amendment claim.

A first-class human interest military history

museum program and exhibits is an obvious objec-

tive for exercise of plaintiffs’ First Amendment

rights. The huge success of the Intrepid aircraft car-

rier navy history museum berthed on the West Side

of Manhattan shows the level of public interest

available for an equivalent army history museum

just a few blocks away on Manhattan’s East Side.

The obvious response to the District Court's rejec-

tion of the Armory site for the museum is—where

else would you put such a museum? The Armory is

where recruits were enlisted and drilled in prepa-

ration for wartime service, and where the regimen-

37

tal officers and veterans returning home met and

told “war stories” during peacetime. The historic

and aesthetic importance of the spaces has been

certified by the New York City Landmarks Preser-

vation Commission and U.S. Department of the Inte-

rior. The rooms should certainly not be demeaned as

high-end Park Avenue restaurants for the well-to-do,

while American military veterans are de facto denied

access.

Deprivation of Plaintiffs’ liberty interests by the

New York legislature destroyed all possibility of

establishing public museum programs and exhibits

telling the story of America’s citizen soldiers in the

landmark interior rooms on the first and second

floors of the Armory, which was plain injury-in-fact

giving Plaintiffs standing to file this action.

POINT IIE

VETERANS ASSOCIATION PETITIONERS

HAVE A STATUTORY RIGHT OF FREE

ACCESS TO THE ARMORY’S “VETERANS

ROOM” AND OTHER REGIMENTAL ROOMS

FOR MEETINGS AND SOCIAL EVENTS,

AND THAT RIGHT WAS DEPRIVED

THROUGH STATE ACTION IN VIOLATION

OF NEW YORK STATE MILITARY LAW

SECTION 183 AND THE FIRST, FIFTH

AND FOURTEENTH AMENDMENTS

In New York State, veterans have a statutory free

right to use any armory in the state. That right was

arbitrarily cancelled for the Seventh Regiment

Armory by the challenged state statute.

38

The District Court (and the Circuit Court during

argument) dismissed the DAV’s objection to the loss

of that right by asserting

The Armory is owned by the State, and, assum-

ing that Plaintiffs have a limited statutory right

of access to the Armory upon application, Plain-

tiffs have not alleged that they have applied for

and been denied access to the Armory.

(Appendix, page 22a)

That response misses the point. It is not simply

the change in control that is involved here, but the

change in use. As noted above, all of the first and

second floor meeting rooms have now been assigned

under the lease itself for use as commercial restau-

rants, cocktail lounges and reception spaces.

(Appendix, pages 37a to 43a) The free meeting

spaces for veterans’ organizations have simply been

taken away. High-priced restaurants are no substi-

tute for free historic regimental and company rooms

lined with battle flags and memorabilia.

Plaintiff-Appellant Sidney Siller is Department

Adjutant for the Disabled American Veterans,

Department of New York, Inc.; and a disabled vet-

eran of World War II and the U.S. military force in

Korea in 1945 and 1946. The Disabled American Vet-

erans Department of New York, Inc. is one of the

veterans organizations expressly granted free use of

armories in New York State for regular and special

meetings and organization events under Section 183

of the Military Law of New York State. The DAV

brings this action on its own behalf and, along with

Sidney Siller, as class representative for members of

other veterans’ organizations granted similar rights

under such law.

39

All of these veterans’ organizations had the statu-

tory right to use the Seventh Regiment Armory for

free meeting space prior to the challenged 2004 leg-

islation which eliminated that right by closing off all

available meeting spaces in the Armory Adminis-

tration Building. The limitation of military space to

two small offices on the third floor of the Armory is

the equivalent of the “Laidlaw discharges” that pre-

vented the recreational activities enjoyed by FOE

member Kenneth Lee Curtis, bestowing on him Arti-

cle IiI standing due to injury-in-fact. (Friends of the

Farth, Inc., et al v. Laidlaw Environmental Ser-

vices (TOC), Inc., 528 U.S. 167, 181-182 (1999)) The

two third floor offices assigned for military use

under the ESDC lease amount to 1.4% of the total

square footage in the Administration Building, while

the Conservancy occupies over 98.6% of the space.

(Complaint, par. 90)

Favored Parties and Preferential Treatment

The Supreme Court has held that individual rights

guaranteed by the Fourteenth Amendment prohibit

state bestowal of benefits on favored parties

through preferential treatment, even where the act

may be assumed to be done in good faith. The Vet-

erans organizations in New York State have all been

effectively excluded from the Armory by assigning

the Armory meeting spaces to commercial restau-

rant and catering use. This constitutes injury-in-fact

giving them standing to bring this action. Sce,

Regents of the University of California v. Bakke,

438 U.S. 2656, 319-320 (1978).

The State has effectively shut out one identifiable

population group in favor of another, effecting state

AO

affirmative preferential treatment prohibited by the

Fourteenth Amendment.

The action is prohibited under Kelo for favoritism;

the action is prohibited under Bakke for exclusion.

The Petitioner veterans organizations have been

classified as undesirable entrants onto the property

by the very state action encompassed by the leg-

islative scheme favoring others. The classifications

are insidious because they are not express. But they

are as real as if they were express in the legislation

and in the lease it effected.

Most offensive to veterans (and other citizens) is

denial of access to the Armory space honoring recip-

ients of the Congressional Medal of Honor—the

nation’s highest military award for valor—by its con-

version into an entrance hall for the Conservancy’s

commercial banquet and reception area.

In the cases that have come to be known as the

civil rights cases, the First Amendment protection of

association was claimed as a shield against disclo-

sure of membership lists in Bates v. Little Rock, 361

U.S. 516, 524-527 (1960). The Supreme Court recog-

nized that association was a fundamental liberty

right due special protections in the balance of state's

interest.

While the disclosure of NAACP membership lists

in Alabama at the height of the civil rights struggle

cannot be compared to abridgement of associational

freedom of veterans of the armed forces, the fun-

damental liberty interest is the same, those rights of

assembly and association—not for political purpose,

but for purposes much more basic and fundamental

to the protection of liberty: former comrades-at-

4l

arms finding companionship in a place dedicated to

the purpose.

The principle in common with the disclosure of

NAACP membership lists in the Bates case that

exists here is the limitation on freedom of associa-

tion in violation of equal protection and in violation

of the rule enunciated by this Court. (/d. at 525)

CONCLUSION

All of the first and second floor meeting rooms of

this historic Armory—previously wholly dedicated

to military use—have now been assigned under the

state’s lease for exclusive use as commercial restau-

rants, cocktail lounges and reception spaces, pre-

venting use by the military veterans—Petitioners

here—who formerly used or had free access to

them.

It is difficult to describe what such de facto evic-

tion means to former soldiers who have survived

battle and returned home to share bonds in a special

setting bespeaking a spirit shared with those who

have, for generations in the same great tradition,

gone before them. This is the formless thing whose

deprivation was described by this Court in Harman

v. Forssenius and cited in Dunn. “ ‘Constitutional

rights would be of little value if they could be.

indirectly denied’. . . .” Dunn v. Blumstein, 405

U.S. 330, 341-342 (1972) (Footnotes omitted. )

See also Gomillion v. Lightfoot, “‘It is incon-

ceivable that guaranties embedded in the Constitu-

tion of the United States may thus be manipulated

out of existence.’ Frost & Frost Trucking Co. v.

Railroad Commission of California, 271 U.S. 583,

42

594.” [Gomillion v. Lightfoot, 364 U.S. 339, 346

(1960)]

The question for this Court is not merely one of

who has standing to challenge state action that

deprives property, but whether these veterans have

standing to challenge state deprivation of cognizable

rights under the First, Fifth and Fourteenth Amend-

ments that have been injured through state action. Is

their past and ongoing association in a specific his-

toric and sacred setting a liberty interest that may

not be summarily and arbitrarily deprived through

state action?

The fundamental question in this case is whether

the State Legislature can take away Petitioners’ Con-

stitutional rights in the course of transferring a pri-

vately-owned historic buildin, and land lease to a

favored private group.

We ask that the Court grant this Petition for Cer-

tiorari, and recognize the standing of Petitioners to

litigate the full case on the merits.

Respectfully submitted,

WHITNEY NORTH SEYMOUR, JR.

Counsel of Record

425 Lexington Avenue, Room 1721

New York, New York 10017-3954

(212) 455-7640

Attorney of Record for Petitioners

On the Brief:

GABRIEL NORTH SEYMOUR