Motion of Defendants-Appellants for Leave to File Supplemental Brief

    NO. 92-1405

In The

Supreme Court d the United State*
October Term , 1992

ELENA RUTH SASSOWER and DORIS L. SASSOWER,

v.
Petitioners,

KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY, 
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT 
RIFKIN, individually, and as Members of the Board of Directors 
of 16 Lake Street Owners, Inc., HALE APARTMENTS, DeSISTO 
MANAGEMENT, INC., 16 LAKE STREET OWNERS, INC., 
ROGER ESPOSITO, individually, and as an officer of 16 Lake 
Street Owners, Inc.

Respondents,

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

PETITION FOR REHEARING

DORIS L. SASSOWER 
Petitioner Pro Se 
283 Soundview Avenue 
White Plains, New York 10606 
(914) 997-1677

ELENA RUTH SASSOWER 
Petitioner Pro Se 
16 Lake Street, Apt. 2C 
White Plains, New York 10603 
(914) 997-8105



1

PETITION FOR REHEARING

The central issue presented in this Petition for Rehearing1 is inherent 
power. This case demonstrates the extent to which inherent power lends 
itself to improper purposes, specifically, retaliation.

Inherent power, as this Court recognized in Chambers v. Nasco. I l l  S.Ct. 
2123 (1991), poses a danger to a democratic society based on a 
constitutional balance of powers. Nowhere is the danger clearer and more 
present than in the case at bar. For such reason, in a spirit of civic duty, 
Petitioners again make the enormous personal investment of time and 
money to bring this case before this Court—lest the Second Circuit's 
Decision stand as a precedent for totally unrestrained use of inherent 
power. On its face, the Second Circuit's Decision reflects the complete 
abandonment of standards for invoking inherent power and for fixing fee- 
shifting awards thereunder (CA-14-17, Pet. at 12-13, Reply at 6).

Cognizant of the purpose of rehearing, yet wishing to provide this Court 
with appropriate background, Petitioners respectfully refer this Court to 
their Petition and Reply Brief. Those documents comprehensively detail 
the total lack of factual (Pet. at 22-23, Reply at 6, fn. 6) or legal basis for 
the Second Circuit's invocation of inherent power against them (Pet. at 16- 
28). They do not, however, set forth the reason why inherent power was, 
nonetheless, used by the Second Circuit to sustain a $92,000 sanction 
award against Petitioners which could not otherwise be upheld.

The "substantial grounds for rehearing not previously presented" rest on the 
retaliatory motives behind the Second Circuit's invocation of inherent 
power. The Petition did not directly address such motivation, only alluding 
to it obliquely in its discussion of the denial of due process that had taken 
place:

1 Petitioners, who are pro se, sought to obtain the assistance of counsel for the 
purposes of this Petition, but were denied an extension of time to do so. Their motion 
to extend their time is annexed hereto and made part hereof.



2

"By admission of the District Court, plaintiffs' 'bias recusal 
motions' formed a basis for its fee award (CA-37). Yet, 
there was no finding by either the District Court of the 
Second Circuit that such motions were false, unfounded, or 
made in bad faith. As this Court made clear in [Holt v. 
Virginia. 381 U.S. 131] at 136, the right 'to escape a biased 
tribunal' is itself a due process right, which may not be 
penalized under inherent power by a fine in reprisal for 
making a recusal motion grounded on judicial bias." (Pet. 
at 22)

Thereafter, Petitioners' Reply Brief referred to:

"...the ease with which inherent power becomes a sword to 
selectively and invidiously punish persons or entities 
associated with causes to which the court is unsympathetic, 
if not hostile, rather than a shield to protect the integrity of 
the court." (Reply at 2)

Such veiled references did not delineate the retaliatory use of inherent 
power-which is the ground on which this rehearing is being sought.

Even the most cursory examination of the record in the instant case 
establishes that the Second Circuit's invocation of inherent sanctioning 
power against Petitioners had nothing whatever to do with Petitioners' 
litigation conduct. Rather, it was motivated by the ulterior and illegitimate 
purpose of retaliating against Petitioners by reason of their family 
relationship with George Sassower.



3

Heretofore, Petitioners believed that this Court's recognition of the 
destructive potential of inherent power, as reflected in Chambers, would 
suffice for summary reversal of the Second Circuit's shocking Decision 
which, on its face, shows no identification of what conduct is being 
sanctioned under inherent power (CA-14-17) and maintains the arbitrary 
lump-sum $92,000 sanction which the underlying District Court's Decision 
admits to being uncorrelated to any particular legal costs (CA-52-53, Pet. 
at 7, 19-21).

Mr. Sassower is referred to at fn. 1 of the Second Circuit's Decision (CA- 
9) and, more graphically at fn. 5 of the District Court's Decision (CA-34). 
Although Petitioners are not personally familiar with Mr. Sassower's 
lawsuits, they are generally aware that he has, for a number of years, been 
suing judges of the Second Circuit, describing them in unflattering and 
provocative terms as "criminals in black robes" and referring to the Second 
Circuit in inflammatory language as "unfit for human litigation".

Petitioners' recusal motions referred to the "spill over" effect of the District 
Judge's hostility to George Sassower onto Petitioners, as well as the Court's 
reliance on extrajudicial knowledge dehors the record in this case2.

Petitioners sought to overcome such overt hostility of the District Judge 
engendered by Mr. Sassower. They prosecuted this litigation according to 
the highest professional standards3. Their written submissions, consistently

2
Mr. Sassower was not a party to this action. However, when defendants made 

him an issue in the case by including him as one of their after-the-fact pretexts for their 
discriminatory disapproval of Petitioners' purchase of the apartment, he sought to intervene 
as of right under F.R.Civ.P. 24(a), as an approved occupant of the subject apartment (A- 
112-3). The District Court denied such right, notwithstanding that such intervention was 
consented to by Petitioners.

3
Petitioner Doris Sassower's familiarity with legal and judicial standards can be 

discerned from her listing in Martindale-Hubbell Law Directory, which, as part of the 
record before the District Court, is annexed to the Petition (CA-57-58).



4

supported by meticulously-documented evidentiary proofs and legal 
authority, reflect that. Nevertheless, the record shows that the District 
Court's decisions routinely ignored, falsified, and distorted both the facts 
and the law, and that the District Judge went out of his way to malign 
Petitioners and to make gratuitous derogatory references to George 
Sassower.

Such pattern continued through to the District Judge's post-trial Decision, 
which, in imposing a $92,000 sanction award against Petitioners, includes 
invidious comparisons between Petitioner Doris Sassower and her ex- 
husband George Sassower as a basis for imposing sanctions (CA-42). To 
buttress such comparison, the District Judge then went dehors the record 
to quote from an unpublished judicial decision in an unrelated state court 
case, which palpably did not conform to judicial standards and which 
excerpts rested on double hearsay4 (Pet. at 8).

On appeal to the Second Circuit, Appellants presented the issue of the 
District Court's violation of judicial standards as a basis for reversal, 
meticulously documenting that the District Court's decision was not only 
unsupported by the record, but relied on hearsay and ethically-proscribed 
dehors the record information obtained by the Court ex parte (Pet. at 9-10). 
Appellants further argued that they had been further deprived of due 
process in that, inter alia, they had been denied a hearing as to any alleged 
sanctionable conduct, as well as the monetary amount of the sanctions.

Had the District Judge given due process before inclusion of such excerpts in 
his Decision (CA-42, CA-38-9), he would have learned that the state court decision he 
quoted from was under appeal and the bases included the lack of factual support for the 
decision, the denial of due process by the judge in that case, lack of jurisdiction, and the 
judge's failure to recuse himself, notwithstanding that he had an on-going political 
relationship with her adversary in that case, and had himself been a former adversary and 
professional competitor of Doris Sassower.



5

The Second Circuit's Decision does not identify these serious, substantive 
issues—all of which it dismissed summarily with the conclusory statement 
"We have considered all of the other issues raised by appellants and find 
them totally lacking in merit" (CA-18, Pet. at 11). Since the 
uncontroverted record before the Second Circuit established fully the truth 
of Petitioners' factual assertions and the validity of their legal arguments, 
its peremptory disposition can only be perceived as a "cover-up" of the 
bias of the District Court and a reflection of its own.

Such uncontroverted record included Petitioners' fully-documented Rule 
60(b)(3) motion, establishing that defendants' fee applications were 
fraudulent and perjurious and that defendants were guilty of discovery 
misconduct of such prejudicial nature as entitled Petitioners to a new trial 
(Pet. at 27-8).

As set forth in the Petition, the Rule 60(b)(3) motion showed a deliberate 
pattern of flagrant discovery abuse by defendants which denied Petitioners 
information critical to presenting and proving their discrimination case 
(Pet. at 4-5, 27-8). What the Petition failed to state is that the 
extraordinary magnitude of defendants' discovery abuse resulted from the 
District Court's outright refusal to enforce the law relative to Petitioners' 
discovery rights. Instead, it condoned, tolerated, and thereby encouraged 
defendants' litigation misconduct.

That the District Judge could, thereafter, use Petitioners' uncontroverted 
and fully-documented Rule 60(b)(3) motion as a basis for awarding 
sanctions against Petitioners (CA-38, CA-53-55) shows that this was a 
litigation which Petitioners could not win for a reason requiring the Judge's 
recusal at the very outset—his pre-existing hostility to George Sassower and 
anyone connected with him. Such reason, likewise, required recusal of the 
Second Circuit. Indeed, such pre-existing hostility as the Second Circuit 
harbored toward George Sassower also prevented it from any fair 
adjudication of the issues raised by Petitioners.



6

Petitioners' Reply Brief (at p. 10) referred to their Rule 60(b)(3) motion as 
"dispositive of every issue before this Court". The deliberate 
mischaracterization and denigration of that motion by the District Judge 
(CA-53-55), then adopted in haec verba by the Second Circuit to support 
the astronomical monetary award against Petitioners (CA-18), becomes 
evident upon even the most cursory review of that 60(b)(3) motion (Pet. 
at 13, fn. 9).

Petitioners do not lightly make the grave charges hereinabove set forth, i.e., 
that the District Court and the Second Circuit deliberately abandoned 
ethical and legal standards in an on-going violation of their oaths of office 
and that inherent power furnished the tool for retaliation against Petitioners 
for reasons having nothing to do with their conduct of the litigation. 
Petitioners rest on the factual record herein and the manifest facial 
improprieties of the lower courts' decisions to support such charges.

Our Constitution and Bill of Rights did not contemplate that "bills of 
attainder" would be resurrected under the rubric of inherent power. Those 
sacred documents were intended to ensure that all persons would be 
judged on their own merits and not found guilty by association or tainted 
by ties of blood.

Due process and equal protection of the laws were not intended only for 
those that we like and admire, but also for those we hate and despise, 
whether such feelings are justified or not. The Petition and Reply Brief 
show that inherent power was here invoked, without any showing of 
necessity, to deny those basic constitutional rights to Petitioners.

The Petition (at p. 28) argued that use of inherent power must be 
"presumptively suspect" where standards of applicable statute and rule 
provisions had not been met. Petitioners are now putting before the Court 
their position that inherent power, as used in this case, is more than 
"presumptively suspect". It is "suspect" and unmistakably retaliatory.



7

Transcending the injustice done Petitioners by the Second Circuit's reliance 
on the undefined, amorphous concept of inherent power, rather than on 
black-letter law embodied in statutes and rules, is the foreseeable 
disintegration of our system of justice if the Decision is to stand. As 
eloquently articulated by Justice Frankfurter, concurring in Youngstown 
Sheet and Tube Co. v. Sawyer. 343 U.S. 579, 594 (1952):

"[t]he accretion of dangerous power does not come in a 
day. It does come, however slowly, from the generative 
force of unchecked disregard of the restrictions that fence 
in even the most disinterested assertion of authority."

The assertion of authority by the lower courts was here not "disinterested". 
The circumstances of this case, with the openly adversarial relationship 
between George Sassower and the judges of the Second Circuit, required 
recusal for general and personal bias. This was essential to safeguard 
public confidence in the judiciary and the integrity of its adjudications 
(U.S. Constitution, Amendment V; 28 U.S.C. §144), since the courts' 
"impartiality might reasonably be questioned".

The seriousness of what this case represents requires this Court's "power 
of supervision". The use of judicial power for retaliatory purposes must be 
an anethema to our system of justice.



8

For the above reasons, as well as those contained in the Petition for 
Certiorari and the Reply Brief, Petitioners pray that this Court, in the 
exercise of its "power of supervision", grant rehearing, vacate the order 
denying same, grant the Petition, and review the Judg ment and Decision 
below.

Respectfully submitted,

DORIS L. SASSOWER 
Petitioner Pro Se 
283 Soundview Avenue 
White Plains, New York 10606

ELENA RUTH SASSOWER 
Petitioner Pro Se 
16 Lake Street
White Plains, New York 10603

May 14, 1992

CERTIFICATE OF PETITIONERS

As Petitioners herein, we hereby certify that the foregoing Petition for 
Rehearing is presented in accordance with the requirements of Rule 44 and 
is made in good faith and not for delay.

DORIS L. SASSOWER ELENA RUTH SASSOWER
Petitioner, Pro Se Petitioner, Pro Se



A PPL IC A TIO N  FOR AN EXTENSIO N OF TIM E TO FILE PETITION FOR  
R EH EA RIN G  OF W RIT OF CER TIO RA R I TO THE SUPREM E COURT

To the Honorable Clarence Thomas, Associate Justice of the Supreme 
Court of the United States and Circuit Justice for the Second Circuit:

1. The above-named Petitioners in the within civil rights action 
brought under the Fair Housing Act respectfully pray for an extension of time to file their 
Petition for Rehearing of the Order of this Court, dated April 19, 1993, denying their 
Petition for a Writ o f Certiorari (Ex. "A"). Said Petition for Rehearing is presently due 
on or before May 14,1993. Petitioners, who are pro se, respectfully request the 60 days 
allowable to permit them to consult with counsel so that they can better present the 
"intervening circumstances of a substantial or controlling effect or other substantial 
grounds not previously presented".

2. The Petition for Certiorari, filed on February 22,1993, rested 
on the need for review of the Second Circuit's use of inherent power to fee-shift $92,000 
litigation costs against civil right plaintiffs, after it could not sustain the District Court's 
identical $92,000 award against them under the Fair Housing Act1.

3. The Petition stated:

"Research has failed to find a single case, before or after 1988, in which 
a federal court has resorted to inherent power to shift a totality of 
litigation fees against losing civil rights plaintiffs, where, as here (CA- 
13), the action was found not to be "meritless" under the standards of 
Christiansbure."2 (at 17)

4. On March 28, 1993, Petitioners moved to have their Petition 
held for consideration with the Petition from the Ninth Circuit in Pacific Legal Foundation 
v. Kavfetz. No. 92-1544—filed three weeks later. As set forth in Petitioners' motion:

As detailed by the Petition (at 19), inherent power was here used by the Second Circuit 
"to accomplish substantive fee-shifting" (emphasis added).

2 Christiansburg v- E.E.O.C.. 434 U.S. 412 (1978)



"4. Both cases highlight how far the lower federal courts have
carried this Court's ruling in Chambers v. Nasco, Inc..____ U .S ._____,
111 S.Ct. 2132 (1991) in using inherent power to dispel express 
statutory and rule sanctioning provisions, in the absence of the required 
'necessity'. Together, they demonstrate the compelling need for this 
Court's clarification of Chambers so as to halt the current expansion of 
inherent power at the expense of text-based authority.

6. Taken together, these two complementary cases represent the 
gamut of private enforcement of public rights: (a) by private individuals; 
and (b) by public interest organizations. Consequently, if the Second 
and Ninth Circuit decisions are permitted to stand, all future private 
enforcement of public rights will be affected-crippled, if not destroyed, 
by inherent power. Such result would plainly defeat Congressional 
intent."

5. Following this Court's April 19,1993 Order denying Petitioners’ 
aforesaid motion and their Petition for a Writ for Certiorari (Ex. "A"), Petitioners received 
copies of the opposing, reply, and amicus briefs filed in the Pacific Legal case, as well 
as the appendix therein. Based upon preliminary study of these materials, Petitioners are 
more convinced than ever of the value to be served by rehearing—but require additional 
time for that purpose.

6. In making this extension request, Petitioners respectfully draw 
the Court's attention to page 5 of the amicus brief filed in Pacific Legal by the NAACP 
Legal Defense and Educational Fund/Mexican American Legal Defense Fund, which cites 
Sassower v. Field as "an unwarranted expansion of Chambers" and "indicative of a 
growing trend to undermine the American Rule as explicated in Alyeska Pipeline Serv. 
Co. v. Wilderness Soc'v. 421 U.S. 240 (1975)."

7. Clearly, too, Petitioners' presentation of their motion for 
rehearing would be affected by whether this Court grants certiorari to Pacific Legal 
Foundation v. Kavfetz, which, on information and belief, has been calendared for this 
Court's conference on Friday, May 14,1993—the same day on which Petitioners' Petition 
for Rehearing is presently due. 8

8. In view of the danger represented by inherent power "to undo 
the work of a democratically-elected Congress, as well as a duly-appointed Judicial 
Conference—and to do so, even without passing respect for bedrock due process 
principles" (Reply at 2), Petitioners' respectfully submit that the national issues presented 
by their Petition deserve the additional time requested.



10. Petitioners' "cert" application is most meritorious. Additionally, 
Petitioners intend to seek rehearing because of their good faith belief that this Court is so 
overburdened by its caseload that, with all due respect, the Justices of this Court could 
not possibly have read the Petition. Indeed, as Petitioners set forth in their Petition (at 
19, 28-29) and Reply (at 9-10), the decision of the Second Circuit, on its face, reflects 
such departures from bedrock law of this Court and of the Second Circuit itself as to 
require the exercise of this Court's "power of supervision", pursuant to Rule 10.1(a) and 
warrant summary reversal.

11. As detailed in the Petition (at 22-3) and Reply Brief (5-6), the 
imposition of $92,000 sanction award represents a total denial of due process-there being 
no factual support whatever in the record for the Second Circuit's Decision sought to be 
reviewed. No hearing was ever held to determine either liability or the amount of 
sanctions awarded. On its face, the underlying District Court decision reveals that the 
$92,000 award against Petitioners is a completely arbitrary sum, uncorrelated to any 
sanctionable conduct (CA-52-3).

12. The fact that such sanction represents a complete "windfall" to 
the insured defendants, who were not the "real party in interest" (Pet. at 22, 27) (Reply 
at 7-8) shows further how far the lower courts have departed from the basic principles 
applicable to statutory fee awards.

13. The granting of this extension request causes no prejudice to 
Respondents since the $92,000 Judgment against Petitioners is fully bonded.

WHEREFORE, Petitioners respectfully request that an Order be entered 
extending their time to file their Petition for Rehearing up to and including July 13,1993.

Respectfully submitted,

Doris L. Sassower, Pro Se 
283 Soundview Avenue 
White Plains, New York 10606 
(914) 997-1677

Elena Ruth Sassower, Pro Se 
16 Lake Street, Apt. 2C 
White Plains, New York 10603 
(914) 997-8105

May 10, 1993