NAACP v. Thompson Transcript of Record Vol. I

    NO. 92-1405

In  The

Supreme Court ot tlje United State*
October  Term , 1992

ELENA RUTH SASSOWER and DORIS L. SASSOWER,

Petitioners,
v.

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

SUPPLEMENTAL 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

SUPPLEMENTAL PETITION FOR REHEARING

This Supplemental Petition is submitted to amend and clarify 
the Petition for Rehearing, filed on May 14, 1993 and 
calendared for this Court's conference of June 4, 1993. 
Inadvertently omitted from the Petition for Rehearing through 
typographical error (at p. 7) was the statutory citation to 28 
U.S.C. Sec. 455(a). Petitioners' intended reliance on that 
section may be seen from their quotation of the language 
thereof relative to the lower courts' duty to recuse themselves 
where their "impartiality might reasonably be questioned".

Petitioners further submit that this Court's recent granting of 
"cert" to the case of United States v. Liteky. #92-6921, is a 
supervening circumstance which is an additional reason for 
granting a writ of certiorari in this case. In Litekv. this Court 
will be interpreting Sec. 455(a) so as to resolve a multi-Circuit 
conflict as to whether such section requires recusal for judicial, 
as well as extrajudicial, bias. In that case, the Eleventh 
Circuit's affirmance of the District Court's denial of recusal 
rested on the fact that the District Judge's involvement in a 
prior proceeding involving one of the defendants was not 
viewed as extrajudicial.

The case at bar gives this Court the opportunity to add depth 
and dimension to its present consideration of recusal rules. In 
this case, the Second Circuit did not identify whether the bias 
which was the subject of Petitioners' bias recusal motions was 
of judicial or extrajudicial origin, adopting in haec verba the 
conclusory statement of the District Court (CA-37)1 that:

1 The documents referred to herein are abbreviated as follows: CA- 
("Cert" Appendix); Pet. ("Cert" Petition); Reply Br. (Reply Brief); Pet. for 
Rehearing (Petition for Rehearing).



2

"[Petitioners] made several unsupported bias 
recusal motions based upon this court's 
unwilling involvement in some of the earlier 
proceedings initiated by George Sassower..." 
(CA-10)

Nor did the Second Circuit discuss the due process implications 
of using recusal motions as a basis for sanctions. Indeed, 
without any finding that Petitioners' recusal motions were 
legally insufficient, false, or in bad faith, the Second Circuit 
invoked inherent power to sustain a sanction award based 
thereon (Pet. at 22).

Neither the District Court nor Circuit Court Decisions identified 
that the aforesaid "earlier proceedings initiated by George 
Sassower" were extrajudicial as to Petitioners—who were neither 
party nor privy thereto—or that, by reason of said proceedings, 
the District Judge acquired a "personal knowledge of disputed 
evidentiary issues" which thereafter arose in Petitioners' instant 
action.

As reflected by footnote 4 of the District Court's Decision 
(CA-34), there existed an adversarial relationship between 
George Sassower and the judges of the Second Circuit as a 
result of lawsuits brought by him. Such lawsuits, resting on 
serious allegations of misuse of judicial power, were brought by 
him during the pendency of Petitioners' action and for several 
years prior thereto. Under such circumstances, "an objective 
observer would have questioned" the impartiality of any judge 
sitting in the Circuit, within the intendment of 455(a). LiIjeberg 
v. Health Services Acquisition Corp.. 486 U.S. 847 (1988).



3

This case documents that the "appearance of impropriety"— 
which should have required immediate disqualification by both 
the District and the Circuit Courts—became actualized by their 
respective denial of Petitioners' right to a fair trial and to a fair 
hearing of their appeal. The personal animus generated by Mr. 
Sassower's unrelated litigation against the judges was such as 
to make retaliation against Petitioners inevitable. This case 
became the opportunity for the judges of the Second Circuit to 
advance their own self-interest and that of their judicial 
brethren by discrediting Mr. Sassower and adversely affecting 
his right to remain in occupancy of the apartment which was 
the subject of the instant litigation. Such interest by the judges 
of the Second Circuit was "direct, personal, substantial, [and] 
pecuniary", as proscribed by Aetna Life Insurance Co. v. 
Lavoie. 475 U.S. 813 (1985)2.

The extent to which the Second Circuit recognized that it stood 
to gain by an outcome adverse to Petitioners is established by 
its Decision (CA-6-19) which—like that of the District Court 
(CA-28-55)—is totally devoid of evidentiary support in the 
record as to all material facts and, on its face, abandons 
fundamental legal standards and bedrock decisional law.

2 Although all such criteria were met in this case, it may be noted 
that Justice Brennan stated in his concurring opinion to Aetna.supra. at 829-
30:

"I do not understand that by this language the Court states 
that only an interest that satisfies this test will taint the 
judge's participation as a due process violation... 
Moreover, ... an interest is sufficiently 'direct' if the 
outcome of the challenged proceeding substantially 
advances the judge's opportunity to attain some desired 
goal even if that goal is not actually attained in that 
proceeding."



4

As illustrative of the aberrant decision-making at issue, the 
Second Circuit's Decision (CA-6-19), on its face:

(1) conflicts with Christiansburg v. E.E.Q.C..
434 U.S. 412 (1978), by maintaining intact the 
District Court's $92,000 award under the Fair 
Housing Act, notwithstanding it vacated same 
based on Christiansburg (CA-12-13; Pet at lb- 
19)3;

(2) conflicts with Alveska Pipeline v. Wilderness 
Society. 421 U.S. 240 (1975), by using inherent 
power to effect substantive fee-shifting4 (Pet. at 
19);

(3) conflicts with Business Guides v. Chromatic 
Communications. 498 U.S. 533 (1991), by 
allowing the District Court's admittedly 
uncorrelated $50,000 award under Rule 11 (CA-

3 The unprecedented nature of the Second Circuit's "trumping" of the 
standard of Christiansburg was set forth in the Petition (at 17) as follows:

"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 
Christiansburg."

4 Such substantive fee-shifting is evident from the face of the 
Judgment (CA-23-4) affirmed by the Second Circuit (CA-20), which made 
distributive allocations to the respective Respondents solely according to the 
District Court's Fair Housing Act award (Pet. at 9; 13; 19). As pointed out 
in the Petition (at p. 19, fn. 14), the effect of the Second Circuit's vacatur 
of the award under the Fair Housing Act should have rendered the Judgment 
based thereon a nullity.



5

52-3) to remain intact, notwithstanding it 
vacated the Rule 11 award for failing to identify 
a single sanctionable document (CA-14; Pet. at 
7, fn. 4; 19-20);

(4) conflicts with the plain language of 28 
U.S.C. Sec. 1927 by keeping intact an 
unidentified portion of the $42,000 sanction 
awarded thereunder as to Doris Sassower (CA- 
at 14-6); which unidentified sum was totally 
uncorrelated to any sanctionable conduct—let 
alone to any "excess costs" "reasonably 
incurred" (CA-5; Pet. at 7-8; 19-21);

(5) conflicts with Chambers v. Nasco. 111 S.Ct. 
2123 (1991)5—the sole authority on which it 
relies for its use of inherent power—by, inter 
alia.: (a) omitting the requisite finding that 
available sanctioning rules and provisions were 
inadequate so as to establish any "necessity" for 
such invocation; and (b) omitting the requisite 
finding that due process had been met before 
inherent power was invoked (Pet. at 21-24; 
Reply Br. 1-6);

(6) violates the Code of Judicial Conduct by 
including dehors the record matter, inadmissible 
hearsay, and knowingly false and defamatory

5 The NAACP Legal Defense and Educational Fund, which 
participated in this case as amicus curiae before the Second Circuit, recently 
cited the Second Circuit's Decision as "an unwarranted expansion of 
Chambers" "indicative of a growing trend too undermine the American Rule 
as explicated in Alveska..." (see Appendix to Pet. for Rehearing, para. 6).



S U P R E M E  C O U R T  O F  T H E  U N I T E D  S T A T E S  
O F F I C E  O F  T H E  C L E R K  

W A S H I N G T O N .  D. C. 2 0 5 4 3

June 7, 1993

Mr. Charles Stephen Ralston 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, NY 10013

Re: Elena Ruth Sassower and Doris L. Sassower
v. Katherine M. Field, et a l .
No. 92-1405

Dear Mr. Ralston:

The Court today entered the following order in the above 

entitled case:

The petition for rehearing is denied.

Very truly yours,

William K. Suter, Clerk



6

material obtained s x  parte and as to which 
Petitioners were given no notice or opportunity 
to be heard (Pet. at 10-11; Reply Br. at 7; Pet. 
for Rehearing at 4).

Not apparent on its face was the Second Circuit's disregard of 
United States v. Aetna Casualty & Surety Co.. 338 U.S. 366 
(1949), and Brocklesbv Transport v. Eastern States Escort. 904 
F.2d 131 (1990), when it denied—without discussion— 
Petitioners' threshold jurisdictional objection that the fully- 
insured defendants were not the "real parties in interest" and 
that the sanction award was a "windfall" to them, proscribed by 
countless decisions of this Court, including Henslev v. 
Eckerhart. 461 U.S. 424 (1983) (Pet. at 9; 10; 25-26; 27).

These and other deviant aspects of the Second Circuit's 
Decision were detailed—with citation to legal authorities—in 
Petitioners' Petition for Rehearing and Suggestion for Rehearing 
En Banc6. Said Petition further showed (at pp. 10-11) that the 
"facts" relied on by the Second Circuit to support its $92,000 
fee-shifting award were wholly false and contradicted bv the 
record7. The refusal of the judges of the Second Circuit—each 
of whom were furnished a copy of that Petition—to grant 
rehearing to Petitioners is, in view of that Petition, an 
abdication of their adjudicative responsibilities so extraordinary 
as to be confirmatory of a bias overriding those duties.

6 A copy of said Petition for Rehearing is on file with this Court as 
Exhibit "C" to Petitioners' December 2, 1992 motion to extend time to file 
their Petition for Certiorari.

7 For the convenience of the Court, the pertinent excerpt from pages 
10-11 was annexed as a Supplemental Appendix to Petitioners' Reply Brief.



7

The Second Circuit's actual knowledge that the record and 
controlling law would not support imposition of sanctions 
against Petitioners is unmistakable from review of the appellate 
submissions before it. Those submissions leave no doubt that 
the reason the Second Circuit did not identify in its Decision 
Petitioners' arguments on appeal—which it summarily dismissed 
as "totally lacking in merit" (CA-18; Pet. at 11)—is because any 
one of those arguments would have sufficed in and of itself for 
vacatur of the sanction award against them (Pet at. 9-10).

Likewise, the fact that the Second Circuit's Decision does not 
identify what is being sanctioned under inherent power is no 
accident. Rather, as can be seen from the appellate 
submissions, it is a reflection of the Second Circuit's actual 
awareness that no sanctionable conduct by Petitioners can be 
identified—there being none. Similarly, the Second Circuit's 
failure to make the requisite threshold determination as to due 
process—including Petitioners' right to an impartial
decisionmaker-bespeaks its full knowledge that Petitioners' due 
process rights were violated by a district judge whose actual 
bias and malice were indisputably proven by his decision which 
falsified, fabricated, and omitted all material facts in order to 
do Petitioners maximum injury (Pet. at 9).

Heretofore, Petitioners have stated that their Rule 60(b)(3) 
motion is "dispositive of every issue before this Court" (Reply 
Br. at 10, Pet. for Rehearing, at 6). However, to properly 
evaluate Petitioners' right to recusal-not only of the District 
Court, but of the Second Circuit—it is the appellate submissions 
that were before the Second Circuit which must be examined 
by this Court.



8

The gravity of the charges raised in the Petition for Rehearing- 
that federal judges, sworn to uphold the rule of law, have 
knowingly and deliberately perverted our sacred judicial process 
to advance ulterior retaliatory goals— removes this case from 
the ordinary discretionary review presented by other 
applications for certiorari. This is particularly so where, as 
here, the District and Circuit Courts' Decisions are so aberrant 
on their face as to be suspect.

This case, considered as a companion to Litekv. will give this 
Court an extraordinary and essential opportunity to redefine and 
reinforce the high standards Congress intended to be met by 
federal judges whose "impartiality might reasonably be 
questioned".

Had the Second Circuit applied the unequivocal congressional 
mandate of 455(a) and the constitutional mandate of due 
process, it could neither have sustained the District Court nor 
sat on the case itself since both courts were required thereunder 
to disqualify themselves, s m  sponte. for actual and apparent 
bias. Aetna, supra: Lilieberg. supra.



9

CONCLUSION

For all the foregoing reasons, as well as those contained in the 
Petition for Rehearing, the Petition for Certiorari, and the Reply 
Brief, Petitioners respectfully pray that this Court, in the 
exercise of its "power of supervision", grant rehearing, vacate 
the Order denying certiorari, and grant the Petition for 
Certiorari so as to review the Decision and Judgment below.

Respectfully submitted,

DORIS L. SASSOWER 
Petitioner ElQ Sfi 
283 Soundview Avenue 
White Plains, New York 10606

ELENA RUTH SASSOWER 
Petitioner Em Ss 
16 Lake Street, Apt. 2C 
White Plains, New York 10603

June 1, 1993