Opposition Brief — Tarantino v. City of Hornell

| OFF v= OF THE o: NK

No. 10-216

IN THE

Supreme Court of the United States

FREDERICK TARANTINO,

Petitioner,

CITY OF HORNELL, TIMOTHY AIKEN,

SHAWN HOGAN, JOE PELYCH,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

ro THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

BRIEF ON BEHALF OF RESPONDENTS

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DENNIS P. HARKAWIK, ESQ

Counsel of Record

JAECKLE, FLEISCHMANN

& MUGEL, LLP

12 Fountain Plaza

Buffalo, New York 14202

Telephone: (716) 843-3848

Facsimile: (716) 856-0432

Counsel for Respondents

THOMAS W. BENDER, ESa.

BENDER & BENDER, LLP

68 Niagara Street

Buffalo, New York 14202

Telephone: (716) 856-3200

Facsimile: (716) 856-3270

Attorneys for Respondents

BATAVIA LEGAL PRINTING, INC.—(866) 768-2100

I

QUESTIONS PRESENTED

Did the Second Circuit Court of Appeals err

when it held:

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“We find no error in the district court’s grant of

summary judgment to defendants on

Tarantino’s constitutional claims, and therefore

affirm the judgment for substantially the same

reasons set forth in the District Court’s

thorough and well-reasoned opinion.”

“To the extent Tarantino presses a facial

challenge to the provision of § 120-1 that

prohibits the collection of rents on properties

that lack the required Certificate of Occupancy,

Hornell, N.Y., Municipal Code § 120-1(C)(1)(c),

we conclude that this provision is rationally

related to the legitimate governmental purpose

of enforcing the substantive requirements of

Hornell’s municipal code relating to the

inspection and certification of buildings within

the City.”

Tarantino v. City of Hornell, 09-2640-CV, 2010 WL

2025757 (2d Cir. May 24, 2010).

TABLE OF CONTENTS

QUESTIONS PRESENTED |.

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

COUNTER-STATEMENT OF THE CASE

4 Background to The Relevant Provision:

of the City of Hornell Municipal! Code

ll. Statement of Facts

ITI. The Opinions Below

A. The District Court Opinio:

1. The Fourth Amendment Claim

The Equal Protection Claim

ill.

3. The Facial Challenge to the

9005 Ordinance ....... 13

4 The Due Process Claim .. 14

5. First Amendment Claim 15

6. Section 1983 Malicious

Prosecuticn Claim ......... 16

7. Contracts Clause Claim . 16

B. The Second Circuit Court of

Appeals’ Opinion . Ge 17

ARGUMENT | 18

POINT I:

PETITIONER LACKS STANDING

TO CHALLENGE THE 2005

CITY OF HORNELL ORDINANCES . Lg

POINT II:

CERTIORARI IS NOT WARRANTED

THE CHALLENGED ORDINANCE

PROVISIONS ARE RATIONALLY

RELATED TO LEGITIMATE

GOVERNMENTAL CONCERNS

POINT III:

PETITIONER HAS NO VALID

§ 1983 CONTRACT CLAUSE CLAIM . 25

CONCLUSION 30

INDEX TO RESPONDENTS’ APPENDICES

RESPONVDENTS’ APPENDIA ]

Code Provision In Effect Since

September 1, 2005 ....... A)

RESPONDENTS’ APPENDIA 2

Code Provision In I:ffect at Time

of Events Complained of by Petitioner: AY

TABLE OF AUTHORITIES

CASES

Baker v. Cart

369 U.S 16, B82 S.Ct. |

7 1,Fd.2d 663 (1962)

Central State University v. American A

of University Professors, Central State

Univ. Chapter,

526 U.S. 124, 119 5. Ct. Lit

143 L. Ed. 2d 227 (1999)

City of Los Angeles v. Lyon

461 U.S. 95, 114, 103 5. ¢

75 L. Ed. 2d 675 (1983)

Dandridge v. Williams,

397 U.S. 471, 905. Cl

25 L. Ed. 2d 491 (1970

Dennis Vv. Higgins

498 U.S. 439, L111 bd.

119 IL. Kd. 2d 969 (1991

FCC v. Beach Communication

508 U.S. 307, 113 S.Ct. 209

General Motors Corp. v. ltomein

503 U.S. 181,112 8. Ct. 1105

I7 L. Ed. 2d 328 (1992)

Ilaley v. Pataki.

106 F.3d 478. n. 2 (2d Cir. 199%

lilartman \ Voore,

AAT UJ S. 20. 125 ms. Ct 224

164 J..Ed.2d 441 (2006)

Iie Hler \ Loe,

509 U.S. 312, 113 S.Ct. 2651

19295 1. Bbd.2d 257 (1993)

Keystone Bituminous Coal Ass’n v. DeBenedicti

480 U.S. 470, 107 S. Ct. 123

94 L. Ed. 2d 472 (1987)

Tindsley v. Natural Carbonic Gas ¢

290 T).§. 61.31 8.Ut. 30!

5 Liked. 369 (1911)

Loretto \ Lele promptetr Vianhattan ¢ iY Cor]

158 U.S. 419, 102 8.Ct. 3164

j a P had oq sis (1 Ue

Vanigauilt v. Spring

199 U.S. 473, 26 S.Ct

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Municipal Code § 120-1(C)(2

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Municipal Code

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Municipal Code

Municipal Code § 120-1(k

United States Constitution, Article

The Legislative Branch, Section }

Powers Prohibited of States

United States Constitution

First Amendment

United States Constitution

Fourth Amendment

United States Constitution.

Fourteenth Amendment, Sect

OPINIONS BELOW

The decision of the Second Circuit Court of

Appeals is not reported. (Petition Appendix A.) It

may be located on-line at 2010 WL 2025757 (2d Cir.

May 24, 2010).

The opinion of the District Court for the

Western District of New York is reported at 615

F.Supp.2d 102 (W.D.N.Y. 2009). (Petition Appendix

B.)

JURISDICTION

The Court of Appeals entered its judgment on

May 24, 2010. The petition was filed on August 12,

2010. By letter dated September 14, 2010, from Clerk

William K. Suter, Respondents were granted an

extension of time to October 15, 2010, to respond to

the petition. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

42 U.S.C. § 1983, which provides (in pertinent part):

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State... subjects, or

causes to be subjected, any citizen of

the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress.

he “Contracts Clause” of the United States

onstitution, Article 1 - The Legislative Branch,

Section 10 - Powers Prohibited of States (in pertinent

part):

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No State shall... pass any... Law

impairing the Obligation of Contracts.

Section 1 of the Fourteenth Amendment to the United

States Constitution (in pertinent part):

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,

any person within its jurisdiction th

equal protection of the law :

Section 120-1 of the Municipal Code of the City

Hornell, New York. the full text of which is set out

the Appendices as follow

Respondents’ Appendix 1 (the Code provis1

n effect since September 1, 2005); and

Respondents’ Appendix 2 (the Cede provision

| ° c } . ° }

in effect at the time of the events complained

»f hy Ps tit Tetel: -

COUNTER-STATEMENT OF THE CASE

I. Background to The Relevant Provisions of the

City of Hornell Municipal Code

In 1975, the City of Hornell amended its laws:

to add a provision that mandated:

No property owner shall permit his

property to be occupied by another

unless or until it is in good repair,

clean, sanitary, in habitable condition

and in full compliance with all the

provisions of the Code of the City of

Hornell as certified through a

certificate of occupancy to be issued by

the Code Enforcement Officer of the

City of Hornell.”

Two years later, the City of Hornell added a provision

that mandated, in pertinent part:

l ‘ . | ‘ ° , .

Record, Defendants’ Appendix Exhibit D, Document 28-6, p. 10

of 28.

In 1992, when the Code was re-adopted by the City, this

provision was renumbered to § 120-1(B){1). Respondents’

Appendix 2.

3, , = oe — '

Record, Defendants’ Appendix Exhibit D, Document 28-6, p. 18

of 28.

)

The owner of rental property within the

City of Hornell is hereby required to

immediately notify the City Code

Enforcement Officer when any part of

said rental property is vacated by

tenants, and in no event can said

property be rented to new or different

tenants before aé_ certificate of

occupancy has been issued by the Code

Enforcement Officer.’

In 2001, to address problems arising from a

decaying housing stock often owned by absentee

landlords, the City of Hornell added two preconditions

to the issuance of a certificate of occupancy under

Municipal Code § 120-1 - an insurance requirement

and an agent requirement:”

(3)As a precondition to the issuance of

a certificate of occupancy, the

landlord/owner of said rental property

must supply the City of Hornell with a

property insurance binder indicating

that there is fire and liability insurance

coverage for the property, which is

subject to the certificate of occupancy.

Said insurance binder shall list the City

‘i ina . .

This provisicn was renumbered to § 120-1(B)(2) in 1992.

Respondents’ Appendix 2.

Record, Defendants’ Appendix Exhibit D, Document

28-7, pp. 4-5 of 31.

6

of Hornell for cancellation purposes. If,

during the term of a rental agreement,

said insurance is cancelled and not

renewed, then the occupancy permit for

said property shall be deemed null and

void for the purposes of this section of

the law. This subsection shall take

effect on January 1, 2002. [Added 8-27-

2001]

(4)Prior to the issuance of a certificate

of occupancy, [sic] within the City of

Hornell, any and all landlords/property

owners must designate an agent of at

least 21 years of age, who resides in the

City of Hornell, to accept legal service

on behalf of the _ property

owner/landlord. Prior to the issuance of

a certificate of occupancy, the property

owner/landlord must provide such

information to the Codes Office for the

City of Hornell. ... All service of

process in the event that said property

owner/landlord needs to be served or

given notice by the City of Hornell shall

be deemed sufficient service for the

purpose of the City Code if the City

serves the landlord/property owner or

his or her designated agent. This

subsection shall take effect on January

1, 2002. [Added 8-27-2001]

7

The agent and insurance provisions of the Code,

together with the requirement for a certificate of

occupancy for all rental property, give rise to several

of Petitioner’s Questions Presented. See Petition, p.

i (Questions 1-3).

In mid-2005, Section 120-1 of the Municipal

Code was amended.” See Respondents’ Appendix 1.

Section 120-1, as amended, continues to include the

insurance and agent provisions added to the Code in

2002. Respondents Appendix 1, at § 120-1(E) and (F).

It also revised the requirement that all rental units

must be inspected and certified by the Code

Enforcement Office, by including a provision that

certificates of occupancy remain valid for a 30 month

period or until a change in tenants, at which times the

certificate of occupancy must be renewed. Id., at §

120-1(C)(1)({a).

The 2005 amendment also adds a provision for

obtaining a search warrant in the event that the

owner, agent or person in charge of the premises

requests a warrant or refuses to permit a warrantless

inspection (id., at § 120-1(C)(2)), and a provision that

addresses the effect of a rental prior to compliance

with the certificate of occupancy requirement of the

ordinance:

6 ee .

Record, Defendants’ Appendix Exhibit D, Document 28-7, pp

25-29 of 31.

8

No owner, agent or person in charge

shall collect rents during any period of

noncompliance with the provisions of

this part which would otherwise be due

and owing for the rental of premises

unless and until he or she shall have

complied with the provisions herein.

Nothing herein shall be construed to

prevent a landlord, upon receipt of an

occupancy permit, from receiving the

equitable value of the occupancy of the

premises from the earliest date of

occupancy, but in no event shall a

landlord recover in excess of the agreed

rent.

Id., at § 120-1(C)(8). This rent section of the 2005

amendment to the ordinance gives rise to another of

Petitioner’s Questions Presented. See Petition, p. i

(Question 4).

aT. Statement of Facts

The District Court’s Decision and Order

addresses the factual background of the events that

give rise to Petitioner's claims under the prior version

of § 120-1 of the City of Hornell Municipal Code. See

Petitioner’s Appendix, pp. A6-A13.

At the time of the underlying events, Petitioner

owned rental property on River Street and Davenport

Street in the City of Hornell, New York. He also

9

owned a residence in Amherst, New York. He claims

that he lived in one of his rental units on River Street

during the week and in his Amherst home on the

weekend. Petitioner’s Appendix, pp. A6-A7.

By letter dated June 13, 2003, Petitioner and

others who had failed to comply with the Code’s new

insurance and agent provisions were reminded of them

by the Code Enforcement Office. Petitioner

acknowledges that he was aware of the new Code

provisions, that he received the June 2003 reminder

letter, and that he never complied with the

requirements. Id., p. A8. Petitioner also admits that

he had rented his Davenport Street property to a new

tenant in September 2004. Id.

Based on a September 2004 telephone call to

the City of Hornell Code Enforcement Office from the

new tenant, the Code Enforcement Officer sent

Petitioner a letter dated September 24, 2004,

addressed to Petitioner at his River Street address,

informing him of the lack of a current certificate of

occupancy and advising him that, in order to obtain

the new certificate as required by the new rental, he

must comply with all relevant Code provisions.

Plaintiff admits he received this letter. Petitioner’s

Appendix, pp. A8-A9.

LQ

Petitioner's unsupported belel that his

property was visited by a Code Enforcement Olfice1

as a result of the call from his new tenant (/d., pp. A&

AQ) formed the basis of his Fourth Amendment

claim below.

The Code Enforcement Officer initially tried to

work with Petitioner regarding his failure to comply

with the Code. The Officer’s September 24, 2004

letter to Petitioner at his River Street address was

admittedly received and ignored by him

Petitioner’s Appendix, p. A9. Thus, on October 7

2004, the Officer issued an information and

appearance ticket regarding the violation of § 120

1(B)(2), based on Petitioner’s failure to obtain a new

certificate of occupancy prior to rerenting the

premises. Jd

On November 23, 2004, Petitioner read a

statement concerning his’ belief in_ the

unconstitutionality of the Code provisions related to

rental property into the minutes at a Common Council

meeting. The Code Enforcement Officer was not

Petitioner cites the Fourth Amendment as a Constitutional

provision implicated by his Petition, but the Fourth

Amendment claim is neither raised in Petitioner's Questions

Presented nor referred to in his statement of Reasons for

‘)

Granting the Writ Compare Petition, pp. i-ii, 2, 5, with

Petition, pp. 8-9

Record, Defendants’ Appendlx Exhibit D. Document 28-7

pp. 9, 11-13, 17 22 of 3)

present at the meeting. On November 24, 2004, the

local newspaper carried a story about the meeting and

quoted the Mayor's opinion of the statement Id., pp

A10-Al]

When the Code Enforcement Officer returned to

the Code Office on November 30, 2004, after an

extended absence for personal reasons, he determined

that the certified letter containing the October 7,

2004, ticket had never been successfully delivered to

Petitioner at his River Street address. Id., p. A1O

Accordingly, the Officer issued an _ additional

information and appearance ticket alleging a violation

of § 120-1(B)(3), the agent requirement. IJd., p. A26

Further, because the Petitioner's property file

contained no insurance binder, the Officer issued an

information and appearance ticket alleging a violation

of § 120-1(B)(4), the insurance provision

The Code Enforcement Officer then contacted

Petitioner at his place of employment and arranged an

in-person meeting with him, at which time he

personally served Petitioner with all three of the

tickets. Petitioner’s Appendix., p. All. The charges

against Petitioner were later withdrawn by the City

Id., p. A12.

In the District Court, Petitioner raised a retaliation claim under the

First Amendment related to his reading of this statement and he cits

the First Amendment as a Constitutional provision implicated by hi

Petition, but his retaliation claim is neither raised in Petitioner’:

Questions Presented nor referred to in his statement of Reasons for

Granting the Writ. Compare Petition, pp. i-, 2, 6, with Petition, pp

; €

8-9

Petitione! rental unit tit |

oe [he Opinions Below

\ “he District Court Opinion

he District Court granted summary judgmen

LO Defendants and dismissed the complaint im dt

entirety after a painstaking analysi! of each «

Petitione! constitutional! claim

The Fourth Amendment Claim

Petitioner fourth Amendment earch claim

was rejected by the Court on the ground that he

lacked standing to raise the claim: As a Jandlord, hi

had no reasonable expectation of privacy in tenant

occupied rental property and the evidence, viewed In

the light most favorable to Petitioner as the non

moving’ party, establishes that, if there in fact had

been a search of the rental premise, it wastheresult of

a request for such by the new tenant and thus made o

consent ol an occupant Petitioner s App ndix, py

7 ‘

i >

1 ; ‘\ I

Ls

The I.qual Protection Claim

becau Petitioner did not allege discrimination

based on membership in i protected group, thy

District Court analyzed his equal protection claim

under principles of selective enforcement and cla ol

one Ia... pp A2?2, A2Dd. The Court found, as to the

selective enforcement claim, that ‘plauintill has failed

te show that he and the other landlords that he ha

identified wer imilarly situated in all material

respects, that he wa mn fact selectively treated a

compared to those other landiord QO} Lhat any

differences in treatment Wi motivated by

constitutionally impermissible purposes.” [d.,p. AZ

(he Court also rejected, for essentially thi caryye

reasons, Petitioner's equal protection claim under:

cluss-ol-ons principle: adding Lhat plaintill

established neither the requisite high depree oO

imilarity between himself and the persons to whom

he compared himself (id., pp. A82-A33), nor that the

I red difference in treatment resulted from non

aiscretionary povernimnent! shaction Ud oe , os i}

The Facial Challenge to the ZOO

Ordinance

Che District Court addressed Petitioner s lac

challenge to the 2005 version of 9 120-1 under tI

rational basis” test, which the Court described a

highly deferential test that seck nly to determin

whether a reasonabl rational relation hip CXISI

hetween the ordinance and a! mate rovernment

14

10

end. Petitioner's Appendix, pp. A35-A36. The

District Court found that plaintiff had failed to meet

his heavy burden to “‘negative every conceivable

[rational and legitimate] basis which might support’

the ordinance.” Id., p. A36-A38 (quoting Tuan Anh

Nguyen v. I.N.S., 533 U.S. 53, 75 (2001)). The Court

expressly found that legitimate governmental

interests were discussed by the 2001 City of Hornell

Common Council meeting concerning the agent and

insurance provisions of the ordinance (id., pp. A37-

A838), and held that the 2005 version of the ordinance

“easily passes constitutional muster.” Jd., p. A39.

4, The Due Process Claim

The complaint alleged a violation of plaintiff's

due process rights, but, as plaintiff never responded to

arguments concerning it on the summary judgment

motion, the District Court presumed he had dropped

it. JId., p. A.40. In any event, the Court found no

denial of procedural due process, as the evidence

established that plaintiff was given notice and an

opportunity to be heard (id., p. A41), and it found that

there was no evidence that the defendants had

engaged in any egregious or outrageous conduct such

as would support a substantive due process claim. Id.

10 ie ote

The District Court found that plaintiffs challenge to

provisions that were no longer in the ordinance after the 2005

amendments were moot. Petitioner's Appendix, p. A37, n. 13.

15

5. First Amendment Claim

The District Court determined that plaintiff's

First Amendment claim - that he was retaliated

against for having spoken out at the Common Council

meeting in November 2004 - “suffer[s] from several

fatal defects.” Id., p. A42. Petitioner could not plead

or prove, as required by Hartman v. Moore, 547 U.S.

250, 125 S.Ct. 2977, 164 L.Ed.2d 441 (2006), the lack

of probable cause for his prosecution. On its face, the

ordinance’s agent provision applies to all owners of

rental property. Thus, because Petitioner did not

dispute that he had not named an agent for service,

there was probable cause for the prosecution. Id., p.

A43. Moreover, even had the agent provision applied

only to non-resident owners, the inability of the Code

Enforcement Officer to serve Petitioner at his local

address, as evidenced by the unclaimed certified

mailings, provided probable cause. Id., pp. A44-A46.

The prosecution on the insurance provision was also

supported by probable cause, as Petitioner never

contended that he supplied proof of coverage to the

City. Finally, Petitioner did not show that his First

Amendment rights were actually chilled by the

prosecution; in fact, he never presented any evidence

that he changed his behavior in any way after the

tickets were served on him on November 30, 2004. Id.,

pp. A47-A48.

16

6. Section 1983 Malicious

Prosecution Claim

The District Court held that Petitioner's

malicious prosecution claim was subject to summary

judgment for several reasons. First, probable cause

supported the issuance of the appearance tickets. Id.,

p. A49. Second, the proceedings were not terminated

in Petitioner’s favor. Id., pp A49-A5l. Third,

Petitioner never presented evidence that he was

deprived of a constitutionally protected liberty

interest as a result of the tickets. Id., p. A51-A52.

4; Contracts Clause Claim

The District Court recognized that the issue as

to whether an individual can assert a § 1983 cause of

action for violation of rights under the Contracts

Clause is an open question. Nevertheless, it assessed

Petitioner’s claims regarding the ordinance’s alleged

impairment of his insurance and rental contract rights

on the merits and found them subject to dismissal on

summary judgment. I/d., p. A52-A53._ Petitioner

remains able to enter into an insurance contract; he

simply must meet certain conditions before he may

obtain a certificate of occupancy for rental property.

Id.,p. A53. Further, Petitioner presented no evidence

that indicated that an existing contractual

relationship with a tenant was impaired as a result of

the ordinance, nor evidence that the ordinance’s

requirements and restrictions were unjustified. Id., p.

Abdé.

17

B. The Second Circuit Court of Appeals’

Opinion

After reviewing the District Court’s summary

judgment order de novo (id., p. A3), the Second Circuit

Court of Appeals affirmed the grant of summary

judgment to Defendants “for substantially the same

reasons set forth in the District Court’s thorough and

well-reasoned opinion. TId., p. A4. In addition, it

examined Petitioner's facial challenge to § 120-

1({C)(1)(c) of the Code, as amended in 2005, regarding

the prohibition against rent collection on property

that lacks the required certificate of occupancy, and

“conclude[d] that this provision is rationally related to

the legitimate governmental purpose of enforcing the

substantive requirements of Hornell’s municipal! code

relating to the inspection and certification of buildings

within the City.” Id.

18

ARGUMENT

Petitioner seeks a writ of certiorari from the

2010 decision of the Second Circuit affirming the

District Court’s 2009 grant of summary judgment

dismissing his complaint. He specifically challenges

the 2005 City of Hornell ordinances that impose

certain preconditions to obtaining a _ required

certificate of occupancy for rental property,

specifically, proof of fire and liability insurance

coverage on the property and the appointment of a

resident agent for service of process. Petitioner

argues that the ordinance’ provisions

unconstitutionally discriminate between rental

property owners and owner-occupiers, and that the

agent provision interferes with his property rights by

forcing him to delegate the right to accept service of

process to a local agent. Petition, p. 8. Petitioner also

claims that the rent provision deprives him of rent on

his rental units.

The decisions below were correctly decided.

Petitioner’s claims do not warrant the grant of

certiorari by this Court.

19

POINT I:

PETITIONER LACKS STANDING

TO CHALLENGE THE 2005

CITY OF HORNELL ORDINANCES

Petitioner states in his challenge to the 2005

provisions of the City of Hornell Municipal Code that

his rental units have remained vacant since the

beginning of this action. Petition, p. 6. However,

nothing in the Petition links the vacancy of his rental

units to the ordinances he challenges. Petitioner does

not state that the reason the units are vacant is

because he has not been able to obtain a certificate of

occupancy for the units. He does not claim that he

has been unable to meet the preconditions for

obtaining a certificate of occupancy because no one

would sell him insurance covering the property and no

one would agree to serve as a local agent for his units.

He also does not claim that he has met the conditions

for issuance of a certificate of occupancy but has

nevertheless been denied one by the City of Hornell.

He also does not claim that his units are covered by

certificates of occupancy but that he has nevertheless

been unable to rent the units to prospective tenants

because they balk at the ordinances. He merely states

that the units are vacant. Thus Petitioner’s

challenges to the ordinances are in essence solely

theoretical.

In its constitutional dimension,

standing imports justiciability: whether

the plaintiff has made out a “case or

20

controversy” between himself and the

defendant within the meaning of Art.

III. This is the threshold question in

every federal case, determining the

power of the court to entertain the suit.

As an aspect of justiciability, the

standing question is whether the

plaintiff has “alleged such a personal

stake in the outcome of the

controversy” as to warrant his

invocation of federal-court jurisdiction

and to justify exercise of the court’s

remedial powers on his behalf.

Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197,

2205, 45 L. Ed. 2d 343 (1975) (quoting. Baker v. Carr,

369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663

(1962)). “Essentially, the standing question in such

cases is whether the constitutional or statutory

provision on which the claim rests properly can be

understood as granting persons in the plaintiff’s

position aright to judicial relief.” Id., 422 U.S. at 450,

95 S.Ct. at 2206. “Standing has always depended on

whether a plaintiff has a ‘personal stake in the

outcome of the controversy.’” City of Los Angeles v.

Lyons, 461 U.S. 95, 114, 103 S. Ct. 1660, 1671, 75 L.

Ed. 2d 675 (1983) (quoting Baker v. Carr, 369 U.S.

186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)).

Nothing in Petitioner’s proof on the summary

judgment motion below, or contained in his Petition,

suggests that he has a personal stake in the outcome

of this controversy, and therefore nothing in his

21

Petition warrants the Court’s exercise of its remedial

powers on Petitioner’s behalf.

POINT II:

CERTIORARI IS NOT WARRANTED;

THE CHALLENGED ORDINANCE

PROVISIONS ARE RATIONALLY RELATED

TO LEGITIMATE GOVERNMENTAL

CONCERNS

In any event, the ordinances are proper and

reasonable exercises of the City of Hornell’s police

powers, and as such, there is no basis on which to

grant certiorari in this case.

This Court has “consistently affirmed that

States have broad power to regulate housing

conditions in general and the _ landlord-tenant

relationship in particular.” Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 440, 102 S.Ct.

3164, 3178, 73 L.Ed.2d 868 (1982); see Pennell v. City

of San Jose, 485 U.S. 1,12, n.6, 108 S.Ct. 849, 858, n.

6, 99 L.Ed.2d 1 (1988).

““fA] classification neither involving

fundamental rights nor proceeding along suspect lines

... cannot run afoul of the Equal Protection Clause if

there is a rational relationship between disparity of

treatment and some legitimate governmental

purpose.’” Central State University v. American

Ass‘n of University Professors, Central State Univ.

Chapter, 526 U.S. 124, 127-28, 119 S. Ct. 1162, 1163,

22

143 L. Ed. 2d 227 (1999) (quoting Heller v. Doe, 509

U.S. 312, 319-321, 113 S.Ct. 2637, 125 L.Ed.2d 257

(1993) (citations omitted); citing FCC v. Beach

Communications, Inc., 508 U.S. 307, 313-314, 113

S.Ct. 2096, 124 L.Ed.2d 211 (1993); Nordlinger v.

Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1

(1992)). Indeed, the Equal Protection standard is to be

assessed deferentially:

[A]ppellees need only show that the

classification scheme embodied in the

Ordinance is “rationally related to a

legitimate state interest.” ...“[WJe will

not overturn [a statute that does not

burden a suspect class or a fundamental

interest] unless the varying treatment

of different groups or persons is so

unrelated to the achievement of any

combination of legitimate purposes that

we can only conclude that the

legislature’s actions were irrational.”

Pennell v. City of San Jose, 485 U.S. 1, 14, 108 S. Ct.

849, 859, 99 L. Ed. 2d 1 (1988) (quoting New Orleans

v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49

L.Ed.2d 511 (1976); Vance v. Bradley, 440 U.S. 93, 97,

99 S.Ct. 939, 943 59 L.Ed.2d 171 (1979)).

Moreover, the Court “has consistently refused

to invalidate on equal protection grounds legislation

which it simply deemed unwise or unartfully drawn.”

U.S. R.it. Ret. Bd. v. Fritz, 449 U.S. 166, 175-76, 101

S. Ct. 453, 459-60, 66 L. Ed. 2d 368 (1980).

23

In the area of economics and social

welfare, a State does not violate the

Equal Protection Clause merely because

the classifications made by its laws are

imperfect. If the classification has

some “reasonable basis,” it does not

offend the Constitution simply because

the classification “is not made with

mathematical nicety or because in

practice it results in some inequality.”

... “The problems of government are

practical ones and may justify, if they

do not require, rough accommodations -

illogical, it may be, and unscientific.” .

.. “A statutory discrimination will not

be set aside if any state of facts

reasonably may be conceived to justify

| ae

Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct.

1153, 1161, 25 L. Ed. 2d 491 (1970) (quoting Lindsley

v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct.

337, 340, 55 L.Ed. 369 (1911); Metropolis Theatre Co.

v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441,

443, 57 L.Ed. 730 (1913); McGowan v. Maryland, 366

U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393

(1961)).

Petitioner presented no evidence that. the

ordinances at issue here are irrational or invidious;

indeed, it is evident from the record of the Common

24

Council meetings’ that the City enacted the

ordinances as reasoned and practical efforts to address

the City’s very real problems presented by a

deteriorating rental housing stock and absentee

landlords. The requirement for a rental property to be

covered by insurance is sufficiently supported by the

City’s negative experiences with rental property that

had been allowed to deteriorate to a dangerous or

dilapidated condition, thereby subjecting its tenants

to the risk of peril and, ultimately, the City to

significant expense. Further, it is reasonable for the

City to distinguish between rental property and

owner-occupied property with respect to the insurance

requirement, as the latter clearly has a direct stake in

insuring the property in which he resides, while the

former, who may be in rental property just for the

income potential, has been known to just walk away

from damaged or damage-producing properties.

The requirement that a local agent be named for

service of process, too, is a reasonable effort to deal

with the problems resulting when absentee landlords

buy up cheap City housing, collect rents on properties

that are allowed to deteriorate, and then are

completely unreachable when it is time to address

charges for Code violations or other City issues with

the property. In addition, the rent provision of the

2005 ordinance ~ that rent may not be collected unless

the property has a current certificate of occupancy -

is a reasonable effort to ascertain that the rental

wa Record, Defendants’ Appendix Exhibit D, Document 28-7,

pp. 3-4, 25-29 of 31.

25

property is inspected before it is re-rented and then

again at 30 month intervals, thereby ensuring that the

structure remains in a safe and habitable condition.

This rent provision is a carefully drawn ordinance that

expressly permits the landlord to obtain the equitable

value of the rental (in other words, the rent) once the

certificate of occupancy is issued; it merely prohibits

rent collection during the period that the property is

not covered by a current certificate of occupancy.

Accordingly, because the ordinance is a

reasonable, rational, and equitable response to

legitimate governmental concerns, Petitioner raises no

issue that warrants the grant of certiorari in this case.

POINT III:

PETITIONER HAS NO VALID

§ 1983 CONTRACT CLAUSE CLAIM

Tothe extent that Petitioner’s argument is that

the ordinances violate his rights under the Contracts

Clause of the Constitution, the claim also does not

require certiorari to be granted. It is true that, as the

District Court decision points out, the issue of

whether an individual may assert a § 1983 claim based

on an alleged violation of the Contracts Clause is not

clear-cut.

In the 1991 decision, Dennis v. Higgins, in

which the majority held that suits for violations of the

Commerce Clause could be brought under § 1983,

26

Justice Kennedy, in a dissent in which Chief Justice

tehnquist joined, stated

In our only previous case discussing a §

1983 claim brought for the violation of

a supposed right secured by Article I of

the Constitution, we held that violatio1

of the Contracts Clause does not giv

rise to a §& 1983 cause of action. Carter

v. Greenhow, 114 U.S. 317,58S.Ct. 92%

29 L.Ed. 202 (1885) ‘T'|ne Court

held that the Contracts Clause can b

said to secure individual rights “only

indirectly and incidentally.” Jd., at 322

s.Ct., at 930 The Court furthe:

explained that the only right secured by

the Contracts Clause is the “right t

have a judicial determination, declaring

the nullity of the attempt to impair |

State’s] obligation.” Ibid

Vennis v. Higgins, 498 U.S. 439, 457 1] Ct. &

876.1121L. kd. 2d 969 (1991) (in d) eC!

Since then, the Ninth Circuit Court of Appeal

in Southern California Gas Co. v. City of Santa Ana

336 F.3d 885 (9th Cir. 2003), has found a private right

under §& 1983, while the Second Circuit Court of

Appeals, in Haley v. Pataki, 106 F.3d 478, 482, n

(2d Cir 1997). indicated its uncertainty as to whethe

there was such a right Petitioner's Appendix, pp

A hy 2 A are

27

Thus

Circuit Courts’ discrepencies, it is evident that the

, given the dissent in Dennis and the

time will come when this issue must be directly

addressed by this Court. But this Petition does not

provide the Court with an appropriate avenue for a

discussion of the proper interplay between § 1983 and

the Contracts Clause

This Court hus said that an inquiry into a

party's Contract Clause claim “has three components:

whether there is a contractual relationship, whether a

change in law impairs that contractual relationship,

and whether the impairment is substantial.” General

Motors Corp. v. Romein, 503 U.S. 181, 186, 1125S. Ct.

1105, 1109, 117 L. Ed. 2d 328 (1992). Petitioner has

not met even one of the three components, never mind

all three of them.

tirst, Petitioner has neither submitted evidence

of nor even alleged a contractual relationship. He

provided no evidence of a insurance contract giving

rise to a contractual relationship with an insurance

company concerning his rental property nor evidence

of a rental contract with a tenant. Therefore,

Petitioner cannot meet even the first component of the

inquiry — the fact of a contractual relationship

further, Petitioner’s ability to enter into an

insurance contract or rental contract is not impaired

by the new Code provisions. The insurance and agent

provision merely sets out certain conditions before the

City will issue a certificate of occupancy The

28

insurance pre-condition requires only that the

property is covered by insurance and that the City will

be advised if the policy is cancelled. Petitioner’s

ability to enter into such contractual relationships is

wholly unaffected; it is simply made mandatory if he

wants to obtain a certificate of occupancy for the

property. Likewise, the pre-condition that all rental

property owners name a local agent to accept service

of process regarding the property, and the 2005

amendment regarding rent collection, have no effect

on any contractual relationship with a tenant. This is

particularly true, given that Petitioner in fact has no

tenants; he has let his property sit vacant rather than

seek a certificate of occupancy for it. Petition, p. 6.

Petitioner neither alleges nor evidences any facts to

establish that he experienced an impairment of any

degree in a contractual relationship. Therefore

Petitioner does not meet the second component of the

inquiry.

Thus, this case - at best - presents only a

theoretical situation for the Court to address under

the Contract Clause. For that reason, Petitioner’s

unsubstantiated claim that his rights under the

Contract Clause have been impaired by § 120-1 of the

Municipal Code of the City of Hornell does not

warrant the grant of certiorari in this case.

Furthermore, even if Petitioner had shown some

form of impairment, the ordinances - as a reasonable

and limited exercise of the City’s police powers -

withstand scrutiny under the Contract Clause.

29

“[I]t is to be accepted as a commonplace

that the Contract Clause does not

operate to obliterate the police power of

the States. ‘It is the settled law of this

court that the interdiction of statutes

impairing the obligation of contracts

does not prevent the State from

exercising such powers as are vested in

it for the promotion of the common

weal, or are necessary for the general

good of the public, though contracts

previously entered into between

individuals may thereby be affected.

This power, which in its various

ramifications is known as the police

power, is an exercise of the sovereign

right of the Government to protect the

lives, health, morals, comfort and

general welfare of the people, and is

paramount to any rights under

contracts between individuals.’”

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470, 503, 107 S. Ct. 1232, 1251, 94 L. Ed. 2d 472

(1987) (quoting Manigault v. Springs, 199 U.S. 4738,

480, 26 S.Ct. 127, 130, 50 L.Ed. 274 (1905)). See

Petitioner’s Appendix, pp. A54-55.

Accordingly, the Contract Clause does not

provide a basis on which to grant certiorari to the

Petitioner.

30

CONCLUSION

The District Court correctly granted summary

judgment dismissing the complaint, and the Second

Circuit Court of Appeals correctly affirmed that

decision. There is no ground on which to grant

certiorari in this case.

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

DENNIS P. HARKAWIK, ESQ.

J AECKLE, FLEISCHMANN

& MUGEL, LLP

12 Fountain Plaza, Suite 800

Buffalo, New York 14202

(716) 843-3848

Counsel of Record for Respondents

THOMAS W. BENDER, ESQ.

BENDER & BENDER, LLP

68 Niagara Street

Buffalo, New York 14202

(716) 856-3200

Attorneys for Respondents

Al

APPENDIX 1]

Municipal Code of the City of Hornell, New York, §

120-1, Residential Occupancy Permits (as amended

effective September 1, 2005):'

A. Title. This section shall be known as the

“Residential Occupancy Permit Provisions”

and is supplementary to applicable provisions

of the City Code for the City of Hornell.

B. Purpose and scope. The purpose and scope is

to provide uniform administration and

compliance with residential occupancy permits

and to establish the responsibilities of parties

concerned therewith.

C. Inspection and certification of premises.

(1) General.

(a) All residential rental dwelling

units and commercial rental units

shall be inspected and certified by

the Code Enforcement Office of

the City of Hornell (hereinafter

“the Department”), which shall

determine compliance’ with,

administer and enforce all

applicable provisions of this code.

On and after September 1, 2005,

residential occupancy permits

I . ° -« ° . .

This Code provision is available on-line at

AZ

shall be valid for 30 months from

the date of issuance. The vacancy

of any unit shall invalidate said

permit even if said vacancy shall

occur within said 30 months.

(b) Nothing contained herein

Shall be construed or operate to

invalidate an otherwise legally

effective permit or certificate

issued prior to September 1, 2005,

except that such permit or

certificate shall be valid only until

March 31, 2008, or a change in the

tenancy of the residential rental

dwelling unit to which the permit

or certificate relates, whichever

first occurs.

(c) Except as otherwise provided

herein, it shall be unlawful and a

violation of this chapter to rent,

lease, sell on a land contract or

otherwise allow the occupancy of

any residential or commercial

rental unit without the inspection

and certification as required

herein.

(d) If, upon inspection, said

premises do not comply with all

applicable provisions of this code

or the Uniform Code, the specific

reasons for noncompliance shall be

A3

specified in writing in a notice and

order, as provided. The notice and

order shall be provided to the

owner or the owner’s agent.

Occupants or proposed occupants

of dwellings shall have the right

to inspect the certificate of

occupancy of the residential rental

dwelling unit, apartment or

multiple residence in which they

have an interest at no cost.

(2) On or after September 1, 2005, the

Department shall have the right to

inspect all or any part of the rental

dwelling, including any unit’ or

apartment, or entire multiple residence

as required herein and/or upon

complaint, except that the owner, agent

or person in charge thereof shall have the

right to insist upon the procurement of a

search warrant from a _ court of

competent jurisdiction by the Chief of

the Department, or his or her designee,

in order to enable such inspection. The

officials charged with conducting the

inspection shall be required to obtain a

search warrant whenever an owner,

agent or person in charge refuses to

permit a warrantless inspection of the

premises after having been advised that

he or she has a constitutional right to

refuse entry of the officials without a

search warrant.

A4

(3) The officials charged with conducting

the inspection shall make _ such

inspection, access and circumstances

permitting, within three business days of

receipt of a request from the owner,

agent or occupant.

(4) An owner, agent or occupant may file

with the Department a request for such

inspection and the issuance of a

residential occupancy permit by regular

mail or in person at the office of the

Chief of the Department.

(5) Nothing herein shall be construed to

limit the right of the Department to

inspect any property at any time. If,

after issuing a residential occupancy

permit, the Department received a

complaint alleging a violation of this

chapter, other than a violation that

creates an imminent hazard to the public

health or to the physical or mental

health of the occupants of the rental

property, the Department shall make a

good-faith effort to notify the owner or

agent of the complaint by either

telephone or regular mail, _ before

conducting an inspection under this

chapter, and shall provide to the owner

or agent one working day to explain

what steps the owner or agent is taking

to correct the violation. The Department

may take steps necessary, by inspection

A5

or other means, to assure that the

violation is corrected.

(6) No occupancy permit shall be issued

unless and until the fee(s) required are

paid in full to the Department.

(7) No occupancy permit shall be issued

unless the rental dwelling unit is an

authorized use pursuant to zoning, and

until all other applicable provisions and

requirement of the Code of the City of

Hornell are complied with and met.

(8) No owner, agent or person in charge

shall collect rents during any period of

noncompliance with the provisions of

this part which would otherwise be due

and owing for the rental of premises

unless and until he or she shall have

complied with the provisions herein.

Nothing herein shall be construed to

prevent a landlord, upon receipt of an

occupancy permit, from receiving the

equitable value of the occupancy of the

premises from the earliest date of

occupancy, but in no event shall a

landlord recover in excess of the agreed

rent.

(9) These provisions shall not apply to

dwellings designed and used exclusively

for occupancy as_ hotels, motels,

1).

|

Ik

who

A6

transient homes or establishments of like

nature.

Temporary occupancy permit. The Department

may cause to be issued at its discretion a

temporary occupancy permit following an

initial inspection, which temporary occupancy

permit shall be subject to review and revocable

at the discretion of the Department. No

temporary occupancy permit may be issued in

cases where fire safety is involved, such as

defective electr'cal wiring, the absence of either

an operating smoke detector or, after

September 1, 2v05, a carbon monoxide detector

where required, or improper or inadequate

means of egress and other conditions of like

nature.

As a precondition to the issuance of an

occupancy permit, the landlord/owner of said

rental property must supply the City of Hornell

with a property insurance binder indicating

that there is fire and liability insurance

coverage for the property, which is subject to

the occupancy permit. Said insurance binder

shall list the City of Hornell for cancellation

purposes. If, during the term of a rental

agreement, said insurance is cancelled and not

renewed, then the occupancy permit for said

property shall be deemed null and void for the

purposes of this section of the law. This

subsection shall take effect on September 1,

2005.

G.

H.

AZ

Prior to the issuance of an occupancy permit

within the City of Hornell, any and all

landlords/property owners must designate an

agent of at least 21 years of age, who resides in

the City of Hornell, to accept legal service on

behalf of the property owner/landlord. Prior to

the issuance of an occupancy permit, the

property owner/landlord must provide such

information to the Codes Office for the City of

Hornell. Said information must include the

name, address and telephone number of such

designated agent. All service of process in the

event that said property owner/landlord needs

to be served or given notice by the City of

Hornell shall be deemed sufficient service for

the purpose of the City Code if the City serves

the landlord/property owner or his or her

designated agent. This subsection shall take

effect September 1, 2005.

Penalties for offenses. Any person who shall

violate or assist in the violation of these

provisions or who fails to comply with a notice

and order issued by the Department under

these provisions shall, upon conviction, be

punished by a fine of not less than $250 nor

more than $500 each day a violation exists.

This section shall be effective on September 1,

2005.

A9

APPENDIX 2

The Prior Code Provision:

Municipal Code of the City of Hornell, New York, §

120-1, Residential Occupancy Permits

As this Code Provision is no longer in effect, a

copy of Chapter 120 of the City of Hornell Municipal!

Code in effect at the time of the events (2004)

complained about in the underlying action is attached

hereto.

In addition to the attachment, the relevant

provisions are also set forth below:

Section 120-1. Constituents of unsafe building;

certificate of occupancy required for all property.

[Amended 7-28-1975; 6-27-1977; 5-26-1987]

A, All buildings or _ structures’ which are

structurally unsafe, unsanitary or not provided

with adequate egress or which constitutes a fire

hazard or are otherwise dangerous to human

life or which, in relation to existing use,

constitute a hazard to safety or health by

reason of inadequate maintenance, dilapidation,

obsolescence or abandonment are, severally, for

the purpose of this chapter, unsafe buildings.

AlQ

CAL oO] Oct up icy Fret UJ LiT¢ a

No property owner shall permit hi

property to be occupied by another

unless or until it is in good repair, clean

sanitary, in habitable condition and in

full compliance with all the provisions of

the Code of the City of Hornell a:

certified through aée certificate of

occupancy to be issued by the Code

Kinforcement Officer of the City of

Liornel]

he owner ol rental property within the

City of Hornell is hereby required to

immediately notify the City Code

Kinforcement Officer when any part of

said rental property is vacated by

tenants, and in no event can said

property be rented to new or different

tenants before a certificate of occupancy

has been issued by the Code

Hinforcement Officer. A violation of any

part of this section shall subject the

owner thereof to a mandatory minimum

fine of $250

AS a precondition to the issuance of a

certificate Oo} occupancy Lhe

landlord/owner of said rental property

must supply the City of Hornell with a

property insurance binder indicating

that there is fire and lability insurance

coverage for the property, which }:

All

ubject to the certificate of occupancy

Suid insurance binder shall list the City

of Hlornell for cancellation purposes. If,

during the term of a rental agreement,

said insurance 1s cancelled and not

renewed, then the certificate oO]

occupancy issued for said property shall

be deemed null and void for the purpose

of this section of the law This

ubsection shall take effect on January

1, 2002. [Added 8-27-2001]

Vrior to the issuance of a certilicate ol

occupancy, within the City of Hornell

any and all landlords/property owner

must designate an agent of at least 2]

years of age, who resides in the City of

lfornell, to accept legal service on behalf

of the property owner landlord. Prior to

the issuance otf ae certificate’ of

occupancy, the property owner/landlord

must provide such information to thi

Codes Office for the City of Hornell

\ll service of process in the event that

said property ownel landlord needs to be

erved or given notice by the City of

Hfornell shall be deemed — sufficient

service for the purpose of the City Cod

if the City serves the landlord/property

owner or his or her designated agent

This subsection shall take effect on

January 1, 2002. [Added 8-27-2001 |