# Petition for Writ of Certiorari — Fitzgerald v. Thompson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1038

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1569%3A1. Public record. Not legal advice.