SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF
CERTIORARI
Maria Caterina Rosenfeld
v.
James Hackett and the Linn Benton Housing Authority
STATEMENT OF THE
CASE
Petitioner Motioned for More Time in which
to File this Writ
I am pro se petitioner Maria Caterina
Rosenfeld. I will refer to myself in the first person in this writ. During the
first week of February 2013, a thief who did not want me to proceed with this
case, slashed the tires of my car and stole my laptop computer in which the
entire history of documents for this case was stored.
When confronted by two sheriff’s deputies,
the thief admitted the theft and told the deputies that he had removed the hard
drive of the computer and had secured it in a safety deposit box. He refused to
disclose the location of the safety deposit box and later was ordered to return
the hard drive to me by a judge as part of a plea deal. Arrangements for me to
get my hard drive were made for April 9, 2013.
Prior to that date I filed a motion to the
Supreme Court requesting an extension of time in which to file a writ of
certiorari and I received a letter from the Court in response stating that
Justice Kennedy granted me through May 2, 2013 to complete this writ. Appendix
B.
I did not know when I filed the motion for
additional time that the reason that I was never informed of the judgment
issued on January 18, 2013 by the Ninth Circuit Court of Appeals or the Mandate
issued in February was because the thief had also stolen my most important
pieces of mail from the beginning of December 2012 through February 2013 which
included the Judgment, the Mandate and any correspondence from the attorneys
for the Defendants in this case.
Some of this mail was recovered from the
safety deposit box by a sheriff’s deputy on April 9, 2013. A report written by
the sheriff’s deputy is at Appendix.
Background
Felons in Publicly Funded Housing and Failure to Enforce Federal
Statutes
I moved into the Pickford/Leonard Housing
Complex (owned by non-profit Corvallis Neighborhood Housing Services (CNHS)
which is now Willamette Neighborhood Housing Services (WNHS) in 1998 because I suddenly
became quite poor after my son required a surgery. I was offered a HUD voucher
by the Linn Benton Housing Authority (LBHA) and I was told in 1999 that they
had taken over the management of the Pickford/Leonard Complex.
Shortly after this shift in property
management all of the hard to fill units in that family neighborhood were
filled with felons with long criminal histories. No warning or explanation was given and I
learned much later that LBHA had made the placements as a favor to Benton
County Probation and Parole and to Benton County Mental Health. LBHA had their own
interest in this scheme.
They wanted to fill hard to fill units
quickly and to give the appearance that more housing was needed so they could
secure $4 million in IRS tax credits to build a complex elsewhere named Camas
Commons in partnership with CNHS. See “Some claim housing authority subsidized
felons” at Appeal Court Appendix “R33” which is a news story that was aired on
KATU television documenting the corruption around this IRS tax credit funded
complex.
I also learned that the placements in my
housing were in violation of U.S. Code 42, Chapter 135, Subchapter V, Sections
13661, 13662 and 13663 (In the older law books at Oregon State University’s
Library these statutes were labeled the Protection of Children Statutes so I
have used that name along with the U.S. Code designation).
Four of the nine felons actively harassed,
intimidated and coerced my daughter and the other sixteen children at Pickford/Leonard.
I tried everything I could think of to gain relief from the horrific hostile
living environment in which we found ourselves which included having a stalker
of children upstairs and a predatory sex offender next door in HUD funded units.
Beginning
in 1999, I called Jim Moorefield who was the executive director of CNHS and he
told me that James Hackett (executive director of LBHA) was responsible for all
of the decisions to be made concerning Pickford/Leonard and that I should call
him so I did. I reported each incident involving the criminals and the fear
that the children were experiencing directly to Mr. Hackett. He ignored my
pleas for help.
I went before the boards of directors of
CNHS and of LBHA and they did nothing. I
visited with one of the Benton County Commissioners in the year 2000 and he
told me that he did not think he had any oversight authority. I went before
Corvallis City Council, as they subsidized that housing, and they did nothing.
The Corvallis Police, who were constantly
called for help by the mothers at Pickford/Leonard, told us they had no jurisdiction
over that federally funded housing. I called the offices of Fair Housing and
Equal Opportunity (FHEO) and eventually filed two Fair Housing claims through
that office under the Fair Housing Act after Mr. Hackett vindictively
terminated my HUD voucher because of my advocation for the children and for my
extremely disabled neighbor, Jim Gabbard. I had been subpoenaed to testify for
Jim at a hearing about the discrimination Mr. Hackett had displayed against
him.
Toward the end of the first Fair Housing
investigation by federal investigator Ife Asantewa, she called me and told me
that “Mr. Hackett is afraid of criminal prosecution because of the illegal
placements he made” and he wanted to conciliate the return of my voucher. I was offered $230,000. and my voucher if I
would sign a statement that contained a lie. Mr. Hackett had written a document
and it said:
“I, Caterina Rosenfeld, will quit spreading
false accusations against James
Hackett.”
I told LBHA that everything that I had
said about Mr. Hackett was true and so I could not sign the document because it
implied that I had been untruthful. See Appeal Appendix “R22, page 2” where
witness to the above offer, Madeline Rubin, attested in an affidavit for the
appellate court.
I sought help from the FBI and the local
district attorney and Oregon’s attorney general. FBI Agent Joe Boyer came to my
house in the summer of 2000 and warned me to get out and did nothing more. Each
agency or individual from whom I sought help either claimed that they did not
have oversight jurisdiction or else that they did not have the man power or
funds to help.
I asked State Senator Frank Morse for help
and he had a reading done of Oregon Revised Statutes 456 by Oregon Legislative
Counsel David Hendrix and Senator Morse told me that the Benton and Linn County
Commissioners did have oversight authority so I went before the three Benton
County Commissioners: Jay Dixon, Linda Modrel and Annabelle Jaramillo, and they
denied having oversight.
I began to follow the money trail and
learned from the Oregon State Community Housing Office that Mr. Hackett and Mr.
Moorefield took turns getting the IRS tax credits that were allotted for Benton
County and that the complex that Mr. Moorefield had previously built using this
system of trading IRS tax credits for seed money from secret private investors,
was Lancaster Bridge. It was poorly built on wetlands and was riddled with
toxic mold and five families had been paid hush money by CNHS. I learned this
from Maria Juarez who was offered increasingly larger amount by Mr. Moorefield
because of the mold that continues to haunt that complex that houses HUD
voucher recipients. The state housing
office told me that it was illegal for Mr. Moorefield and Mr. Hackett to get
more tax credits while they owned and HUD funded Lancaster Bridge units if the
mold allegations were true. LBHA and CNHS were defrauding the IRS.
I
went to our Governor’s office and was told that the state did not have
jurisdiction even though IRS tax credits passed through a state office. The
governor added that the only way I could resolve this failure to enforce the Protection of Children Statutes and have
Mr. Hackett’s lies to federal investigators and his failure to reasonably
accommodate my disabilities addressed was to file a case in federal court.
There was one man who took me
seriously. That was Linn County Commission
John K. Lindsey. He too began to follow the money trail and he also spoke with
Corvallis Police Chief Gary Boldizsar.
Together we have found a ponzi scheme of
sorts where the HUD money and IRS tax credits are so enticing that the Linn
Benton Housing Authority and Willamette Neighborhood Housing Services have
broken federal statutes to get millions of dollars. I have included Linn County
Commissioner John K. Lindsey’s new affidavit outlining his efforts for greater
understanding of this at Appendix M.
James Hackett and Donna Holt of LBHA were
questioned and lied extensively to FHEO investigators and based on their lies
my claims were found to be without cause. I met with U.S. Attorney Lance
Caldwell and Oregon’s U.S. Attorney Karen Immergut wrote a letter to HUD in
Washington D.C. memorializing my visit and passing on my concerns. I received no response from HUD.
When I told Fair Housing about Mr.
Hackett’s and Ms. Holt’s false statements they told me to call the OIG of HUD
so I began calling them and made many calls begging for help from their Hotline
(See HUD OIG’s Acting Counsel Richard Johnson’s
certification of some of those calls at Appeal Appendix R20). I sent a
letter to OIG special agent Tony Meeks and received acknowledgment from James
Beaudette (Appeal Appendix R 20-2) and then nothing further was done. In 2010,
Dennis Raschka, who works as an assistant to the Inspectors General of HUD,
told me that the OIG had never investigated and never would because he claimed
that the U.S. attorney would not prosecute.
I explained to him that this left the Fair Housing Act unenforceable for
a pro se litigant. The U.S. attorney told me he could not prosecute because
neither the FBI nor HUD’s OIG had presented him with an investigation.
All the way to the top of HUD and HUD’s
OIG there was a failure to enforce U.S. Code 42, Chapter 135, Subchapter V,
Sections 13661, 13662 and 13663 and to go after James Hackett and Donna Holt
for lying to federal investigators during my administrative Fair Housing claims
under the Fair Housing Act.
I have continued to pursue relief for
America’s children administratively.
In 2007 I took Oregon’s governor’s advice
and called the federal court in Portland, Oregon and a clerk told me that my
case was so important that the court would appoint an attorney for me if I just
filed the case. On August 20, 2007 I filed claims in the Eugene District Court
and was given Michael R. Hogan for a judge. I motioned for an attorney and that
motion was denied. I
learned that generally, a person has no right to counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349,
1353 (9th Cir.1981).
In my first submission I included a letter
that Congressman Peter DeFazio wrote for me and sent to Mr. Hackett and the
Linn and Benton County Commissioners informing them that it was illegal to
federally fund housing for those with a life time registration as a sex
offender and certain other dangerous felons or those who continually harass
their neighbors. Congressman DeFazio had attached the full text of U.S. Code
42, Chapter 135, Subchapter V, Sections 13661, 13662 and 13663 to that letter
so these statutes so important to children and to my case were presented to
Judge Hogan at the onset of my case. I have presented these critical statutes
to the lower court or referred to them at least five other times in the history
of this case and in Judge Hogan’s Order 260 he dismissed my retaliation claim
and wrote that he had never heard of the statutes and that I had never
presented them to the court and used that as a basis in part for the dismissal
that I would like the Supreme Court to reverse.
This was only one of many instances where
it became apparent that Judge Hogan either did not read my case or did not
remember what he had read or else was not very careful with the truth as I had
presented it. My case has not been properly reviewed in the lower court and for
this reason again in the court system there has been a failure to enforce the
statutes enacted by Congress to protect children in their housing. This is an
issue that
is “of basic importance to our society” Boddie v. Connecticut, 401 U.S. 376 (1973) and for that reason my case
needs to be heard.
THE CASE
Lack of Impartial Treatment in the Lower Court
Early in the history of my case, Judge
Hogan took away my right to be notified by email and my right to see each
submission that is made in the case one time for free. This is an extremely
important tool for a pro se litigant to make sure that all submissions are
properly scanned into the record of the case and simply to be made aware when
the defendants submit a document so that timely responses are possible. It is
also a right that Congress has mandated each litigant have. I filed a motion on
May 2, 2008 (Document 88) with Judge Hogan that this right be returned to me
and explained in that motion that the affidavit from Corvallis Police Chief
Gary Boldizsar was missing its second page that contained important information
about his having sent a thick stack of crime reports to federal investigator
Ife Asantewa and also the Chief’s signature. Judge Hogan denied my motion in
his Order 95 and after that the defendants did not always send me their
submissions in a timely manner. The two
pages where I wrote about retaliation were omitted from the record of my first
pre trial order and I did not learn of this until much later. I complained of the
lower court refusing to allow me this right in my Writ of Mandamus (10-72342) on
page 21 that I filed with the Ninth Circuit on July 28, 2010.
At almost the end of my case I again
motioned the court for the return of this right and I finally was allowed to
know when submissions were filed.
With each e-mail notification comes
this written alert:
“***NOTE TO PUBLIC ACCESS USERS***Judicial Conference of the United States policy
permits attorneys of record and parties in a case (including pro se litigants)
to receive on free electronic copy of all documents filed electronically”
Judge Hogan did not allow me to have
important information that the rules of the court allow. The Federal Rules of
Civil Procedure state that:
(B) In
General. Except as exempted by Rule 26
(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must,
without awaiting a discovery request, provide to the other parties:
(iv)
for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable
to satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment. (emphasis added)
On February 1, 2008, I motioned the court
with Document 47 for the defendants’ insurance company information. I already knew that they were insured by the
Housing Authority Risk and Retention Pool who paid for their defense throughout
the history of this case. Mr. Hackett responded that he did not have an
insurance company and I then supplied the court with proof that he did and the
lower court made no effort to correct this omission of insurance company
information. Judge Hogan denied my
motion in his Order 95. The Housing Authority Risk and Retention Pool was
funded by money that flowed through housing authorities from HUD and ultimately
from the American tax payers. So the
American tax payers are paying to keep the doors of the courts closed to the
poor and those with disabilities.
Discovery rules state that expert witness
information should have been provided to me 90 days before the trial. The
second trial date was set for December 7, 2011. The defendants informed the
court and me that they had an expert witness on November 22, 2011. Judge Hogan ruled
that they must get the expert witness information to me in a week which would
have given me two days before the trial in which to discover anything about
this witness. I did not receive anything at all concerning their expert witness
before December 7, 2011. It would have been impossible for me to discover
anything about the Expert Witness before questioning her.
From the
Advisory Committee notes in 1970:
“Subdivision
(b)(4)—Trial Preparation: Experts. ……….. The subdivision deals
separately with those experts whom the
party expects to call as trial witnesses and with those experts who have been
retained or specially employed by the party but who are not expected to be
witnesses. It should be noted that the subdivision does not address itself to
the expert whose information was not acquired in preparation for trial but
rather because he was an actor or viewer with respect to transactions or
occurrences that are part of the subject matter of the lawsuit. Such an expert
should be treated as
an ordinary witness.
Effective cross-examination of an expert witness requires advance preparation.
The lawyer even with the help of his own experts frequently cannot anticipate
the particular approach his adversary's expert will take or the data on which
he will base his judgment on the stand.”
About six working days before the second trial
the lower court ruled that I must provide all of my medical reports from all of
my medical providers even though I had been pleading with the housing authority
to contact my medical verifiers since December 2004 to verify my need for
reasonable accommodation and they had made no attempt to contact any of them.
My witnesses were not presented as expert
witnesses; they were first hand witnesses and those who had diagnosed
me. I did manage to get all of their reports gathered before the trial which
was difficult because I had to obtain releases from doctors out of state and
rely on medical offices to dig into their archives. The most important
documents had been provided to the court years before, including all of the
diagnosis – many delivered directly to Mr. Hackett before my hearing in
December 9, 2004 to prove my disability to him.
Judge Hogan refused to allow me to use the
exception rule in order to bring to the jury’s attention the conciliation offer
that was made by Mr. Hackett where he insisted that I sign a document implying
that I made up his illegal placements at Pickford/Leonard if I wanted to get my
voucher back. FRCP allow conciliation
offers to be used as evidence for the reason to show that they were offered to
cover up criminal activity. Mr. Hackett had sweetened the deal by throwing in a
bribe of $230,000. During the pre trial conference on November 22, 2011,
Defendants’ attorney Stephen Rickles provided a false statement where he said
that that offer was never made to me by LBHA. My witness, Madeline Rubin, has
testified that she heard the offer.
Also, federal investigator Ife Asantewa with FHEO facilitated that
meeting. I did subpoena her for the first scheduled trial because she has told
me that she was aware that James Hackett provided her with false statements
during her administrative Fair Housing investigation. Judge Hogan refused to
respond to my request to him to allow her to testify.
Under
the doctrine of unconstitutional conditions, the Supreme Court has explained
that “even though a person has no ‘right’ to a valuable governmental benefit
and even though the government may deny him the benefit for any number of
reasons, there are some reasons upon which the government may not rely.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d
570 (1972). Specifically,
the government cannot condition a benefit on a basis that infringes upon an individual's constitutionally guaranteed interest. Id. The reasoning behind the doctrine is sound: A court cannot The reasoning behind the doctrine is sound. A court cannot allow the government to accomplish through a
condition something it cannot demand outright. See id.
To determine whether the government (agency)
has violated the unconstitutional conditions doctrine, the court must look to
whether the condition placed upon the receipt of a benefit “further[s] the end
advanced as the justification for the prohibition.” Nollan v. Cal. Coastal Comm'n,
483 U.S. 825, 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). In other words, the “government
cannot impose a condition for a reason not germane to one that would have
justified denial” of the benefit.
Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L.Rev. 1413, 1460
(1989). Mr. Hackett wanted to condition my voucher return on my giving up my
right to free speech under the First Amendment. He also wanted me to perjure myself
in order to protect him. In order to get my voucher back I could not advocate
for the children by reporting his criminal placements; I had to lie to cover up
Mr. Hackett’s illegal placements that were in violation of the Protection of Children Statutes.
Under FRCP I should have been able to
present information to a jury to show that the conciliation offer was made to
cover up Mr. Hackett’s violations of federal statutes and Judge Hogan would not
allow this.
On November 22, 2011, Judge Hogan promised
a minute order listing the admissible evidence for the upcoming trial
(Transcript, Page 65, line 15). This was never provided.
On November 22, 2011, Judge Hogan excluded
all of the witnesses that I needed to prove that others were told not to report
certain income too and also witnesses that could show that there was a blatant
pattern of discrimination against the disabled by James Hackett and the Linn
Benton Housing Authority and therefore intent to discriminate. He excluded the
other tenants at Pickford/Leonard that had complained repeatedly directly to
Mr. Hackett. He also excluded all of the
witnesses that could show that there was a hostile living environment which was
a key element of my claims. To make a hostile environment claim, a plaintiff
must allege that the defendant’s harassment was so severe or pervasive that it
created a hostile housing environment, effectively altering the terms and conditions
of the victim’s housing. The Supreme Court has addressed the issue of hostile
environment harassment in Meritor Savings Bank v. Vinson; 477 U.S. 57
(1986).
Harassment by the nine felons that Mr.
Hackett placed in units around me created an environment so hostile that I had
to move away; it affected the terms and conditions of our housing. Rogers v. EEOC, 454 F.2. I had no way to
show how horrific my surroundings were over a long period of time caused by the
placement of dangerous and ineligible tenants by Mr. Hackett. I requested
reconsideration of my essential witnesses in a motion and I was phoned by the
court clerk on November 30, 2011 and told that there would be a telephone
hearing early that afternoon.
During the telephone hearing on November
30, 2011, I argued for my witnesses including Jim Gabbard who was extremely
disabled, lived next door at Pickford/Leonard and was discriminated against
repeatedly by Mr. Hackett. Jim Gabbard also witnessed Mr. Hackett’s
discrimination against me. Mr. Gabbard was violently allergic to chemicals and
Mr. Hackett would tell the maintenance man to hide around the corner of Jim’s
house and wait for him to leave and spray with chemicals anyway. When Jim returned home he would have to go to
the emergency room. I had witnessed one
of these sneaky sprays and was subpoenaed to testify for Jim in court years
before my case was filed. Later I heard Mr. Hackett tell Jim as they stood in
front of Jim’s house that he was going to spray chemicals around Jim’s house. When Jim protested, Mr. Hackett responded
that “this is the way that I treat people who file suits against me.” So Jim
was a very important witness for my trial.
I argued for him over the phone on the 30th and when I was
done Defense attorney Stephen Rickles said:
“Judge,
I object. If you allow this witness to testify before the jury it will open the
door of the court for people with disabilities to sue us.”
Judge Hogan said: “Objection sustained.”
This was clear evidence of the discrimination
that I suffered as well and demonstrates the intent of Mr. Hackett, LBHA and
the Housing Authority Risk and Retention Pool to discriminate without any
recourse through the courts.
The very next day, on December 1, 2011, I
filed an objection to Judge Hogan’s rulings and highlighted the extremely
discriminatory objection made by Stephen Rickles. The following day I received
an email that Judge Hogan had ordered his stenographer, Deb Wilhelm, to send me
an email copy of the transcript of the November 30th hearing. When I read the transcript, Stephen Rickles’
discriminatory objection that was sustained by Judge Hogan was surgically
removed from it. My argument is there
and then immediately following are Judge Hogan’s words “Objection sustained.”
Portions of the transcript of the November
30, 2011 hearing is at Appeal Appendix R 39(4).
On page R39(5) Stephen Rickles asks if the hearing is being recorded and
Judge Hogan responds “Yes.”
Altered Transcripts
I met with FBI Agent Mick Fennerty on
December 7, 2011 to ask what to do about the altered transcript. He is the
wonderful man that found Elizabeth Smart and he has deep concern for children.
He made a copy of the letter that I had written to the stenographer asking her
to correct the transcript. I delivered the
letter to Deborah Wilhelm before the hearing later that day.
I received the
transcript of the December 7, 2011 hearing and the discussion about the
continuance between Judge Hogan and me was also omitted. I saw that only those
things that Judge Hogan might not want in the record of this case were not
truthfully recorded in the transcripts and I felt sad and sick at heart and
came to realize that my thousands of hours of trying so hard to do everything
correctly over the previous four and one-half years had been for nothing – a
fool’s task.
I motioned Judge Hogan to compel the
stenographer to provide me with the original digital recordings of the hearing and
he denied that motion. I am asking the Supreme Court for copies of the original
digital recordings from the hearings on July 14, 2009, November 22, 2011,
November 30, 2011 and December 7, 2011.
These recordings take only a few minutes to duplicate, the cost is less
than $1 per recording and it is impossible to alter them without the sound
waves showing signs of alteration when viewed on a computer. I believe it would
be in the interest of justice for the United States District Courts to provide
recordings of hearings upon litigant request.
I have motioned the lower court for the recordings in question and they
have denied my requests for some reason. Altering a transcript constitutes
obstruction of justice under 18
U.S.C., Section1503.
The Supreme Court has precedent that
instructs federal courts to liberally construe the "inartful
pleading" of pro se litigants. Boag
v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982)
(per curiam); Hughes
v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); Noll
v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987); see Draper
v. Coombs, 792 F.2d 915, 924 (9th Cir.1986) (should treat pro se
litigants with great leniency when evaluating compliance with the technical
rules of civil procedure). This rule is particularly important in civil rights
cases. The Supreme Court goes on to say that before dismissing a pro se
complaint the district court must provide the litigant with notice of the
deficiencies in his complaint in order to ensure that the litigant uses the
opportunity to amend effectively. Noll,
809 F.2d at 1448-49. I had no notices from the lower court before
dismissals.
Similar to the plaintiffs in Olmstead v. Dell, Inc., 08-16479 (9th Cir. 2010) I was in a procedural bind on December 7,
2011. The lower court had excluded
witnesses that I had to have to fairly proceed including all of the witnesses
that could show patterns and therefore intent.
In Arlington Heights v.
Metropolitan Hous. Dev. Corp., the Court wrote that “Determining whether
invidious discriminatory purpose was a motivating factor demands a sensitive
inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington
Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977)
(emphasis added).
I had an extensive conversation by phone
on Friday, December 2, 2011 with the judge’s clerk, Jill Wright, where I asked
her if a continuance was possible at that late date because the judge had promised
to rule on the admissibility of my evidence prior to the trial and he had not
ruled on that evidence. Ms. Wright told
me that often trials are postponed or called off right before the scheduled
date and that the jury pool had a number to call and would know on short order
if this happened. I waited until Monday; still no evidentiary rulings. I asked for the continuance on Tuesday. I heard nothing from the court. At the beginning of the December 7th hearing
there was a lengthy conversation where
Judge Hogan told me that I had not filed for a continuance on the prior day
and I explained that I had. I was blind sighted by the lower court judge’s
dismissal immediately after I informed him of my concern with the altered
transcripts. Judge Hogan became visibly angry when I mentioned that the
transcript of the telephone hearing on November 30th was different
than the words that were spoken. His face was quivering. That
conversation clearly voiced in the court room on December 7, 2011 was also removed from the transcript of that
hearing along with the conversation where the judge told me that I had not
submitted the request for a continuance prior to the trial date. I had asked the head clerk, Christy Weller, on Monday and
again on Tuesday if Judge Hogan would receive my emergency motion for a
continuance and she assured me that she had a way to send it to him immediately
so Judge Hogan’s insistence that I had not filed a motion prior to Wednesday
was perplexing to me. It was my
understanding that a continuance would be provided. I had no forewarning or
knowledge that the lower court could or would dismiss my case. I was blind sighted and in disbelief as I
left the courthouse on December 7, 2011.
I learned later that Judge Hogan was out
of town on Monday the 5th and Tuesday the 6th at a
retirement party in Portland in his honor.
The Oregon District Court failed to
provide justice and failed to enforce the Protection of Children Statutes. I
wanted to know why Judge Hogan would do this and decided to once more follow
the money trail so I studied Judge Hogan’s financial disclosures.
Extra Judicial Bias
Judge Michael R. Hogan’s financial
disclosures for 2010 are at Appeal Appendix R10(6) through R10(9) and include
many rentals and also dividends from Pulte Group which gives massive amounts of
money yearly to think tanks that create HUD policy and standards. (Appeal Appendix
R10(10) through Appeal Appendix R10(18)).
Judge Hogan is a bankruptcy judge. He spent many weeks flying across America forming
a deal with Blackstone Group in his Sunwest Case to try and save a bit of the
investors’ money in that ponzi scheme involving housing for the elderly. I
brought him a complex precedent civil rights case and he was nearing his
retirement.
Lack of Due Diligence
At the first pre trial conference on July
14, 2009, Judge Hogan told me that I probably did not know what an affidavit
was. I was surprised at this as I had turned in a submission on April 4, 2008
as Document 74-2 titled “Affidavits” that contained twelve affidavits and
several declarations to indicate the testimony these important witnesses would
attest to at trial. Senior Judge Robert
S. Gardner, Corvallis Police Chief Gary Boldizsar and Linn County Commissioner
John K. Lindsey were among the individuals who created these documents along
with other public officials that were concerned for the safety of children and
had witnesses the retaliation against me because I spoke for those children. I knew then that Judge Hogan had not read my
submissions.
I had formally subpoenaed over twenty
witnesses in four counties and I was preparing for the trial scheduled for July
29, 2009 when I received a thick packet of motions in limine on July 6, 2009
with one asking the court to dismiss my Retaliation claim based on statute of
limitations. The defendants knew that my
Retaliation claim had survived summary judgment on May 22, 2008 and was still
open administratively thus tolling the statute of limitations. During
the first pre trial conference on July 14, 2009 Judge Hogan addressed the
defendant’s motions in limine and said that he had never seen a copy of my
Administrative claim for retaliation so he questioned the statute of
limitations on that claim (page 8 of pre trial conference transcript which is
Appeal Appendix R23) so I tried to hand it to him (page 14) and he turned his
head sharply away and refused to acknowledge me. The administrative claim for
retaliation was in my first submission to the court on August 20, 2007 (Document
2-13, pages 14 – 16) and Judge Hogan had refused to dismiss it in a summary
judgment request by the defendants on May 22, 2008 in Order 95 on page 17 where
Judge Hogan said that he had seen it. I had provided the judge with a notebook
with all of my exhibits two weeks before the first pre trial conference and the
administrative retaliation claim was in it too. During that first pre trial
conference Judge Hogan said that he had looked at the notebook with one eye
during someone else’s trial that morning.
Judge Hogan added another reason to throw
out my retaliation claim that was not based in fact or law where he said in his
Order 260:
“Rosenfeld cites no authority (and I find none), to mandate
that a prospective tenant previously convicted of criminal conduct be excluded
from tenancy on that basis alone. In other words, there is not statutory
support for plaintiff’s allegedly protected activity of complaining about LBHA
renting to former felons.”(Appeal, page 33)
I had submitted the full four pages of the
federal statutes (U.S. Code 42, Chapter 135, Subchapter V, Sections 13661,
13662 and 13663) with my first submission (Document 2 – 5, pages 5 – 9) as they
were attached to the letter that Congressman DeFazio wrote explaining their
importance. I also submitted them at least five other times in various
documents as is explained in my most recent appeal on page 33 and also in my
Writ of Mandamus. The Protection of
Children Statutes are at Appendix O.
During that pre trial conference Judge
Hogan looked at the defense attorney and clearly stated:
“If you can get her retaliation claim
thrown out she will only have one left.”
That is when I first understood that Judge
Hogan was not being impartial in his treatment of me or my case. It wasn’t only
the words; it was the tone of his voice and the way he refused to accept the
retaliation claim that I offered him. It was clear to me that he intended to
dismiss that claim regardless of the legality of dismissing it. When I received
the transcript of that pre trial conference those words were missing from the
transcript. That transcript is Appeal Appendix R23.
When I filed this case I asked for a jury
trial. The Ninth Circuit Court asserts: '''This Court
has set a high standard for the granting of summary judgment ... in
discrimination cases ... because the ultimate question is one that can only be
resolved through a searching inquiry-one that is most appropriately conducted
by a factfinder, upon a full record.'" Lindsey v. SLT Los
Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006), ellipses in original,
quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410
(9th Cir. 1996). They continued with: At
the summary judgment stage, the court "do[es] not weigh the evidence or
determine whether the employee's allegations are true." Davis, 520
F.3d at 1088 (9th Cir. 2008). Ninth
Circuit: "'emphasized the importance of zealously guarding an employee's
right to a full trial, since discrimination claims are frequently difficult to
prove without a full airing of the evidence and an opportunity to evaluate the
credibility of the witnesses.'" Id. at 1089, quoting McGinest v.
GTE Servo Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
Who has Oversight?
I asked that the Ninth Circuit review ORS
456 and determine if the Benton County Commissioners have oversight authority
of LBHA. This is important because
something went terribly wrong when LBHA and Mr. Hackett’s managed my housing. I witnessed this and spoke up and sought
redress in the United States District Court because no one was willing to
assert essential oversight except for Linn County Commissioner John K. Lindsey
and he was crippled without the cooperation of the Benton County Commissioners.
I would like to know who has jurisdiction,
oversight and enforcement of U.S. Code 42, Chapter 135, Subchapter V, Section
13661, 13662 and 13663 (The Protection of
Children Statutes) that are so important to the wellbeing of America’s
children and who has enforcement authority of federal contracts signed with
housing authorities and mandates those enforcements? Who has oversight of the
Linn Benton Housing Authority?
REASONS FOR
GRANTING THE PETITION
In Santosky
v. Kramer, 455 U.S 774 (1982) the Court was unanimously of the view that
“the interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of liberty interests
protected by the Fourteenth Amendment.”
My need to protect my child from
pedophiles and drug dealers and other dangerous practicing felons falls under a
primal instinct to care for my child and this was disrupted and it became
impossible to protect her because of the hostile living environment created by
the defendants and the failure to enforce U.S. Code 42, Chapter 135, Subchapter
V, Sections 13661, 13662 and 13663 by every level of government including the
lower courts. The Ninth Circuit began sanctioning me for appealing Judge
Hogan’s rulings that made no sense in law or fact. I noticed that I kept
getting Judge Edward Leavy who is one of Judge Hogan’s good friends who worked
with him for years in Eugene. Once a State affords the right to appellate
review, the State may not "bolt the door to equal justice," Griffin v. Illinois, 351 U.S. 24(1956). The Griffin
plurality drew support for its decision from the Due Process and Equal
Protection Clauses. My case involved
the formative years of my child and my inability to protect her, and then we were
affected in another profound way by becoming homeless because of the retaliation
of the defendants. As in Boddie v. Connecticut, 401 U.S. 376
(1973) these are issues that are
“of basic importance to our society.”
My
appeals to the Ninth Circuit were submitted in good faith and with the hope of
stopping the placements of sex offenders around innocent children by James
Hackett and thereby stopping the horrific harm that is done to children across
America when the important Protection of Children Statutes are
violated and then children are forced to live in fear of death or molestation
or they are subjected to illegal drugs and other extremely dangerous
individuals in their housing.
This writ should be granted so that
housing authorities and other property managers have oversight. It should be
granted so U.S Code 42, Chapter 135, Subchapter V, Sections 13661, 13662 and
13663 are enforced and children will then have protection in their housing
against those with a lifetime registration as a sex offender and other
dangerous felons. This writ should be granted so that litigants who are
disabled and those who advocate for the Fair Housing rights of children have
equal protection under the Constitution’s First and Fifth Amendments and the
Due Process Clause of the Fourteenth Amendment in our court system to be fairly
heard. And this writ should be granted
so that I am granted justice as I have not been in the District Court in Oregon
nor in the Ninth Circuit Court of Appeals and ultimately so that I have a safe
and decent home in which to live – the original mission of HUD.
I would like to have my Reasonable
Accommodation and my Retaliation claims reinstated and Mr. Hackett dismissal as
a defendant reversed.
Congressional Records[1]
memorialize that the debate that gave birth to the Fair Housing Act recognized
the need to strengthen the rights of the poor and protected classes to seek
redress in America’s courts under the Fourteenth Amendment for Due Process. The
poor cannot afford attorneys. I tried the best that I knew how to bring my
claims to the District Court of Oregon as a pro se litigant because I witnessed
children suffer and I suffered horribly under the HUD system that was created
to alleviate suffering.
The Supreme Court has said that one’s home
“is entitled to special protection as the center of the private lives of our
people.” Minnesota v. Carter, 525 U.S. 83, 99 (1998). This was not true for the poor and disabled
at Pickford/Leonard.
The Supreme Court held in 1967 that “we
cannot leave to the States the formulation of the authoritative ... remedies
designed to protect people from infractions by the States of federally
guaranteed rights.”Chapman v. California, 386 U.S. 18, 22 (1967).
The substantive component of due process
gives federal courts considerable power to strike down federal statutes that
criminalize various activities.
By ignoring the Protection of Children Statutes,
Judge Hogan was at best failing to enforce them along with all of those I
approached before him for help. At worst
he was in essence striking down those statutes critically important to ensure
the safety and peace of children in their federally funded housing.
Civil cases are governed by explicit
guarantees of procedural rights under the Bill of Rights. Among those rights is the
constitutional right to procedural due process, which has been broadly
construed to protect the individual so that statutes,
regulations,
and enforcement actions must ensure that no one is deprived of "life,
liberty, or property" without a fair opportunity to affect the judgment or
result.
This protection extends to all government
proceedings that can result in an individual's deprivation regarding government
benefits which would include my HUD voucher benefits.
Procedural due process is based on the
concept of "fundamental fairness." In 1934, the United States Supreme
Court held that due process is violated "if a practice or rule offends
some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental” Snyder v. Massachusetts, 291 U.S. 97, 105
(1934).
The Courts have construed that fundamental
rights include an individual's right to be adequately notified of proceedings
and the opportunity to be heard at these proceedings, and that the person
making the final decision over the proceedings be impartial in regards to the
matter before them. Goldberg v. Kelly, 397 U.S. 254, 267
(1970). Judge Michael R. Hogan was not impartial throughout most of the long
history of my case.
Because I was facing deprivation of
property, the ability as a disabled individual to have a place to call home,
procedural due process mandated that I be entitled to adequate notice, a
hearing, and a neutral judge.
Under the Supreme Court’s balancing test
to determine the value of my deprivation the following distinct factors must be
considered: “first, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and, finally, the Government's interest,
including the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail." Eldridge
v. Williams, 424 U.S. 319, 335
(1976).
The
Supreme Court has ruled that in certain circumstances, the Due Process Clause
of the Fourteenth Amendment requires a judge to recuse himself on account of a
potential or actual conflict of interest. In Caperton v. A.
T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West
Virginia could not participate in a case involving a major donor to
his election to that court Jess
Bravin and Kris Maher (June 8, 2009). "Justices Set New Standard for Recusals".
The Wall Street Journalhttp://online.wsj.com/article
/SB124447000965394255.html
The Supreme Court focuses on three types of rights under
substantive due process in the Fourteenth
Amendment, United States v. Carolene Products
Co., 304 U.S. 144 (1938). Those three
types of rights are:
- the first eight amendments in the Bill of Rights;
- restrictions on the political process (in my case free speech); and
- the rights of “discrete and insular minorities.”
The
fundamental rights of children and the disabled
to live free from discrimination in their federally funded housing, as stated
in the Fair Housing Act and under the Protection
of Children Statutes, is supported by a rational basis test: the violation of these rights can be rationally related to legitimate government purpose so the
Appellate Court should have applied strict
scrutiny and inquired into whether there is a compelling state interest being furthered
by the violation of the right in my case.
To
pass strict scrutiny review, Judge Hogan’s dismissal of my claims – one by one
– must have had the effect of furthering compelling government interest. His
dismissal had the opposite effect; it closed the doors of the federal court to
children and the disabled when they experience discrimination in their housing.
CONCLUSION
I pray that this writ be granted so that
pro se litigants in forma pauperis and those with disabilities have some avenue
for justice in the United States federal court system and ultimately so that
our children are safe in their homes in America.
Under
threat of perjury I swear that everything I have written is true and correct.
s/Maria Caterina Rosenfeld
[1]
114 Congressional. Record. 2274–75 (1968) (statement of Senator Walter
Mondale); As Senator Mondale stated during his argument for fair housing
legislation:
“Our friends in the ghetto who believe in
due process—thankfully, they are by far in the majority—have not abandoned
their hope that lawful processes can adjustthese outrageous wrongs. But we have
provided little by way of example from which they can argue.
